                                                                         FILED
                                                                    Aug 17 2017, 7:55 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                        Curtis T. Hill, Jr.
Elkhart, Indiana                                           Attorney General of Indiana
                                                           Jodi Kathryn Stein
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Earl D. Hammond,                                           August 17, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           20A03-1612-CR-2948
        v.                                                 Appeal from the Elkhart Superior
                                                           Court
State of Indiana,                                          The Honorable Charles Carter
Appellee-Plaintiff.                                        Wicks, Judge
                                                           Trial Court Cause No.
                                                           20D05-1511-CM-1792



Pyle, Judge.




Court of Appeals of Indiana | Opinion 20A03-1612-CR-2948 | August 17, 2017                   Page 1 of 11
                                        Statement of the Case
[1]   Earl D. Hammond (“Hammond”) appeals his conviction for Class B

      misdemeanor possession of marijuana.1 He argues that the trial court abused its

      discretion by admitting into evidence the marijuana he possessed because the

      evidence was obtained pursuant to a warrantless search. He acknowledges that

      he consented to the search but asserts that his consent was invalid because he

      was in custody at the time and had not received a Pirtle advisement and waived

      his right to an attorney. Because we find that Hammond was not in police

      custody when he consented to the search, we conclude that he was not entitled

      to a Pirtle advisement or to an attorney, and, thus, validly consented to the

      search. Accordingly, the search was constitutional, and the trial court did not

      abuse its discretion in admitting the marijuana.


[2]   We affirm.


                                                       Issue
              Whether the trial court abused its discretion in admitting evidence
              seized pursuant to a warrantless search.

                                                      Facts
[3]   On October 14, 2015, Officer Michael Wass (“Officer Wass”) and Detective

      Jeremy Stout (“Detective Stout”) with the Elkhart County Sheriff’s Department




      1
       IND. CODE § 35-48-4-11(a)(1). The possession of marijuana statute was amended effective July 1, 2017.
      However, we will apply the version of the statute in effect when Hammond committed his offense.

      Court of Appeals of Indiana | Opinion 20A03-1612-CR-2948 | August 17, 2017                    Page 2 of 11
      were driving in Elkhart when the car in front of them drove, by “almost a

      whole—half vehicle,” over the double yellow lines separating the lanes. (Tr.

      Vol. 2 at 136). The vehicle then drove left of the center lines two more times,

      prompting Officer Wass to initiate a traffic stop. The vehicle pulled over, and

      Officer Wass approached the driver’s side while Detective Stout approached the

      passenger’s side. In addition to the driver, there were two passengers sitting in

      the car, one in the front seat and one in the back seat.


[4]   Upon reaching the car, Officer Wass saw that the driver—who was later

      identified as Chevrolet Schrader (“Schrader”)—had “bloodshot and glassy”

      eyes, “lethargic” speech, and “lethargic” movements. (Tr. Vol. 2 at 139).

      Officer Wass could also smell an “odor of burnt marijuana coming from inside

      of the vehicle.” (Tr. Vol. 2 at 139). From the passenger’s side of the car,

      Detective Stout observed a strong odor of alcoholic beverages and saw a box of

      beer in the back seat and several beer cans lying around the car.


[5]   Officer Wass asked Schrader to step outside of the car and administered a field

      sobriety test, which revealed that Schrader was impaired. Schrader then

      admitted that he had smoked marijuana a few hours previously with the two

      passengers in the car, his father, Bryan Schrader (“Bryan”), and his uncle,

      Hammond.


[6]   Meanwhile, Detective Stout talked to Bryan and Hammond from the

      passenger’s side of the car. At one point, Hammond rolled down his window

      to give Detective Stout his ID, and Detective Stout was able to smell “the


      Court of Appeals of Indiana | Opinion 20A03-1612-CR-2948 | August 17, 2017   Page 3 of 11
      strong odor of burnt marijuana coming from the vehicle.” (Tr. Vol. 2 at 201).

      Detective Stout told Bryan that he would be conducting a search of the vehicle

      for marijuana because of the odor. He asked Bryan if he could search his

      pockets, and Bryan consented, but Detective Stout did not find anything in

      Bryan’s pockets.


[7]   At that point, Detective Stout asked Hammond to exit the vehicle and asked

      whether there was any marijuana in the car. Hammond responded “no.” (Tr.

      Vol. 2 at 203). Detective Stout then asked Hammond if he could search his

      pockets for any contraband, and Hammond replied “if you want to.” (Tr. Vol.

      2 at 203). Before searching, Detective Stout asked Hammond whether he had

      any weapons, and Hammond responded “marijuana.” (Tr. Vol. 2 at 203).

      When Detective Stout asked where the marijuana was, Hammond tapped his

      front left pocket. Detective Stout placed Hammond in handcuffs and retrieved

      a bag of marijuana from the pocket he had identified.


[8]   Subsequently, Officer Wass placed Schrader in the police car and returned to

      assist Detective Stout. He saw the marijuana Detective Stout had found in

      Hammond’s pocket and read Hammond his Miranda rights. The officers then

      searched Schrader’s car and discovered various drug paraphernalia, including a

      rolling paper machine, rolling papers, and a marijuana grinder, in a plastic

      container under the driver’s seat of the car. They also found a burnt marijuana

      cigarette in a “wrench,” a device commonly used to smoke marijuana, in an

      open container underneath the driver’s seat. (Tr. Vol. 3 at 32).



      Court of Appeals of Indiana | Opinion 20A03-1612-CR-2948 | August 17, 2017   Page 4 of 11
[9]    Thereafter, the State charged Hammond with Class B misdemeanor possession

       of marijuana based on his possession of the marijuana that Detective Stout had

       found in his pocket. Hammond filed a pre-trial motion to suppress the evidence

       of the marijuana, arguing that Detective Stout’s search had been

       unconstitutional under both the United States and Indiana constitutions. With

       respect to the Indiana Constitution, Hammond argued that he had been in

       custody when Detective Stout asked to search him and, therefore, should have

       been advised of his right to an attorney as required by Pirtle v. State, 323 N.E.2d

       634 (Ind. 1975). Because he did not receive a Pirtle advisement, he argued that

       his consent to the search was invalid and the warrantless search was

       unconstitutional. The trial court held a hearing on the motion to suppress on

       June 3, 2016, and denied it. In support of its denial, the trial court concluded,

       in relevant part, that Hammond had not been in custody at the time of the

       search and, therefore, had not had a right to counsel or to a Pirtle advisement

       when he consented to the search. Therefore, it determined that Hammond’s

       consent had been valid, and the search had been constitutional.


[10]   The trial court held a jury trial on October 20, 2016. At trial, the State offered

       the marijuana into evidence, and the trial court admitted it over Hammond’s

       objection. Hammond then testified and admitted to possessing marijuana when

       Detective Stout searched him. Specifically, when asked whether he had

       marijuana on him, he replied, “I had marijuana on me.” (Tr. 61). He also

       admitted, with respect to his demeanor, “I nicely broke the law, I guess.” (Tr.




       Court of Appeals of Indiana | Opinion 20A03-1612-CR-2948 | August 17, 2017   Page 5 of 11
       61). At the conclusion of the trial, the jury found Hammond guilty as charged.

       Hammond now appeals.


                                                    Decision
[11]   On appeal, Hammond argues that the trial court abused its discretion by

       admitting the marijuana from his pocket into evidence because Detective Stout

       obtained the marijuana pursuant to an unlawful warrantless search. Hammond

       admits that he consented to the search but contends that this consent was

       invalid because he did not receive a Pirtle advisement of his right to counsel, or

       waive his right to counsel, prior to consenting to the search. In response, the

       State asserts that Hammond did not have a constitutional right to a Pirtle

       advisement or to counsel because he was not in police custody when he

       consented to the search.


[12]   Admission of evidence is generally left to the discretion of the trial court, and

       thus we review admissibility challenges for an abuse of that discretion. Jacobs v.

       State, 76 N.E.3d 846, 849 (Ind. 2017). We will reverse only when admission is

       clearly against the logic and effect of the facts and circumstances before the

       court and the error affects the party’s substantial rights. Guilmette v. State, 14

       N.E.3d 38, 40 (Ind. 2014). However, “when an appellant’s challenge to such a

       ruling is predicated on an argument that impugns the constitutionality of the

       search or seizure of the evidence, it raises a question of law, and we consider

       that question de novo.” Id. at 40-41. Generally speaking, evidence obtained

       pursuant to an unlawful search must be excluded at trial. Clark v. State, 994


       Court of Appeals of Indiana | Opinion 20A03-1612-CR-2948 | August 17, 2017   Page 6 of 11
       N.E.2d 252, 266 (Ind. 2013); see also Sellmer v. State, 842 N.E.2d 358, 365 (Ind.

       2006) (reversing the trial court’s denial of a motion to suppress evidence where

       the defendant had not given valid consent to the search that produced the

       evidence).


[13]   A warrantless search based on lawful consent is consistent with the Indiana

       Constitution. Campos v. State, 885 N.E.2d 590, 600 (Ind. 2008). However, in

       Pirtle, our supreme court established that Article 1, Section 11 of the Indiana

       Constitution requires that a person in custody must explicitly be advised of and

       waive the right to counsel before consenting to a search in order to validly

       consent to the search. Pirtle, 323 N.E.2d at 640. The Pirtle Court reasoned that

       “without counsel, [a defendant] could have no conception of his Fourth

       Amendment rights” even though “his consent to allow a search was critical.”

       Id. Notably, the Pirtle requirements only apply to a person who is in police

       custody when he or she consents to a search. Sellmer, 842 N.E.2d at 363.


[14]   Here, it is undisputed that Detective Stout did not advise Hammond of his right

       to seek counsel before requesting to search him and that Hammond did not

       waive his right to counsel. Accordingly, the pivotal issue we must address is

       whether Hammond was in police custody at the time he consented to the

       search.


[15]   “A person stopped by police, while ‘seized’ and momentarily not free to go, is

       ordinarily not considered in custody.” Meriwether v. State, 984 N.E.2d 1259,

       1263 (Ind. Ct. App. 2013). There is no bright line test for determining when an


       Court of Appeals of Indiana | Opinion 20A03-1612-CR-2948 | August 17, 2017   Page 7 of 11
       investigatory detention has moved beyond a non-custodial stop to an arrest or

       custodial interrogation. Campos, 885 N.E.2d at 601. We determine whether a

       person is “in custody” by applying an objective test asking whether a reasonable

       person under the same circumstances would believe that they were in custody

       or free to leave. Id. However, as we summarized in Meriwether, in determining

       whether a defendant was in custody:

               Indiana courts have also considered whether the defendant was
               handcuffed or restrained in any way, whether the police
               interrogation was vigorous, whether the police implied the
               defendant was not free to leave or there were adverse
               consequences for non-compliance, and how long the officer
               detained the defendant.


       Meriwether, 984 N.E.2d at 1263. In addition, our supreme court has found it

       relevant to consider whether the police’s interrogation necessitated the giving of

       Miranda warnings. See Jones v. State, 655 N.E.2d 49, 56 (Ind. 1995), reh’g denied.


[16]   In support of his argument that he was in custody when he consented to

       Detective Stout’s search, Hammond cites to our supreme court’s opinion in

       Sellmer. There, Noblesville police officers received a tip from an anonymous

       informant regarding an automobile containing a large amount of drugs.

       Sellmer, 842 N.E.2d at 359. The officers located the car based on the

       informant’s description of the car and its location and asked to talk to the

       driver, Sellmer. Id. at 360. During the subsequent conversation, one of the

       officers repeatedly asked Sellmer potentially incriminating questions such as

       “‘Do you know of any drugs that might be in your vehicle?’ ‘Are there any

       Court of Appeals of Indiana | Opinion 20A03-1612-CR-2948 | August 17, 2017   Page 8 of 11
       drugs in this car?’ [and] ‘Do you know of any drugs that might be in the car or

       why our dispatcher would have received this call?’” Id. at 364. The officer also

       asked the driver for her consent to search the car multiple times and told her

       that it was in her “best interest to cooperate with us and not make us jump

       through a bunch of hoops.” Id. He also said, “[i]f you have nothing to hide

       here, and the information we have been given is not true, I’m going to thank

       you for your time and allow you to go on your way,” implying that she was not

       allowed to “go on [her] way” until the officers completed a search. Id. When

       Sellmer asked about her rights and whether she had to let the officers search her

       car, the officer did not inform her that she had the right to refuse. Id. at 365.

       Instead, he told her that “[i]t would be in [her] best interest to cooperate if [she

       had] nothing to hide.” Id. After these statements, Sellmer eventually consented

       to a warrantless search of her car, and the police officers found “a large quantity

       of marijuana.” Id. at 359.


[17]   On appeal of her conviction for possession of over thirty grams of marijuana,

       our supreme court concluded that none of those circumstances taken alone “or

       in all likelihood, several of them taken together” would have been sufficient to

       cause a reasonable person in Sellmer’s circumstances to believe that she was

       under arrest or not free to resist the entreaties of the police. Id. However, under

       the totality of the circumstances, the officer’s “extensive efforts” to persuade

       Sellmer to consent to a search of her car and to “avoid advising her that she was

       not required to consent even in the face of her direct questions” were sufficient

       to make a reasonable person believe that she was under arrest or not free to


       Court of Appeals of Indiana | Opinion 20A03-1612-CR-2948 | August 17, 2017   Page 9 of 11
       resist the entreaties of the police. Id. Accordingly, our supreme court found

       that Sellmer was in custody when she consented to the search of her vehicle and

       was therefore entitled to a Pirtle advisement. Id. Because she did not receive

       such an advisement, her consent to the search was not valid. Id.


[18]   In this case, we do not believe Detective Stout used any of the persuasive or

       coercive techniques exhibited in Sellmer to imply to Hammond that he was

       under arrest or not free to resist Detective Stout’s request to search him.

       Hammond claims that he was “not free to leave the situation” or “to go about

       his business.” (Hammond’s Br. 12). However, that factor does not distinguish

       Hammond’s situation from a seizure where a person stopped by the police is

       “momentarily not free to go.” See Meriwether, 984 N.E.2d at 1263. As we

       stated above, a seizure is not ordinarily considered a custodial arrest. See id.


[19]   Likewise, we do not find other factors distinguishing Detective Stout’s stop of

       Hammond from a non-custodial seizure. At the point when Detective Stout

       questioned Hammond, he had not advised Hammond of his Miranda rights or

       implied that there would be adverse consequences if Hammond refused his

       request to search his pockets. In addition, while Detective Stout handcuffed

       Hammond in order to actually perform his search, he had not restrained

       Hammond in any way when he requested to search him or implied that

       Hammond would be restrained. It was only when Hammond volunteered the

       information that he had contraband that Detective Stout handcuffed him.




       Court of Appeals of Indiana | Opinion 20A03-1612-CR-2948 | August 17, 2017   Page 10 of 11
[20]   In light of these factors, we do not find that Hammond was in custody when

       Detective Stout requested his consent to search him. See Clarke, 868 N.E.2d at

       1120 (finding that Clarke was not in custody when his encounter with police

       “involved neither suggestions that he should cooperate, nor the implication of

       adverse consequences for noncooperation, nor any suggestion that he was not

       free to go about his business”). Because he was not in custody, he validly gave

       his consent to the search without a Pirtle advisement, and the warrantless search

       was constitutional. Thus, the trial court did not abuse its discretion when it

       admitted the marijuana seized pursuant to the search.


[21]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 20A03-1612-CR-2948 | August 17, 2017   Page 11 of 11
