MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                    Dec 31 2018, 6:41 am
court except for the purpose of establishing
                                                                                    CLERK
the defense of res judicata, collateral                                       Indiana Supreme Court
                                                                                 Court of Appeals
estoppel, or the law of the case.                                                  and Tax Court




ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                     Kristin Szczerbik
Attorney General of Indiana                             Deputy Public Defender
                                                        Lawrence County Public Defender
Justin F. Roebel
                                                        Agency
Supervising Deputy
                                                        Bedford, Indiana
Attorney General
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                       December 31, 2018
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        18A-CR-1091
        v.                                              Appeal from the Lawrence
                                                        Superior Court
Dylan S. Woolston,                                      The Honorable William G. Sleva,
Appellee-Defendant.                                     Judge
                                                        Trial Court Cause No.
                                                        47D02-1709-F6-1376



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018               Page 1 of 21
                                Case Summary and Issue
[1]   After Dylan Woolston was stopped for a traffic violation, Officer Clay

      Blackburn conducted a warrantless search of Woolston’s vehicle and discovered

      methamphetamine. The State charged Woolston with possession of

      methamphetamine, a Level 6 felony, and Woolston moved to suppress the

      evidence. The trial court granted the motion and the State now appeals. This

      case presents one issue for our review: whether the trial court’s ruling on

      Woolston’s motion is contrary to law. Concluding it is, we reverse.



                            Facts and Procedural History
[2]   On the night of September 9, 2017, Officer Blackburn of the Mitchell Police

      Department initiated a traffic stop of Woolston’s vehicle due to an

      unilluminated license plate. Officer Blackburn turned on his vehicle’s light bar

      to effect the stop and approached Woolston’s vehicle. Woolston provided

      Officer Blackburn with his license but was not able to locate his vehicle

      registration. Officer Blackburn returned to his car for several minutes to verify

      Woolston’s information, then walked back to Woolston’s vehicle, returned his

      license, and informed Woolston he was going to give him a warning.


[3]   After issuing the warning, Officer Blackburn began to walk back to his vehicle.

      Officer Blackburn only took several steps, however, before he stopped, turned

      around, and re-approached Woolston’s window. Officer Blackburn asked

      Woolston if he could speak with him further and Woolston agreed. Officer


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 2 of 21
      Blackburn then asked Woolston “if there was anything inside the vehicle that

      [he] needed to know about[,]” to which Woolston responded that he just got off

      work. Transcript, Volume I at 6. Officer Blackburn then asked if there were

      any illegal drugs in the car and Woolston responded “no” while he lit a

      cigarette. Id. Officer Blackburn asked to search Woolston’s car and then

      confirmed with Woolston that he could search it; Woolston stated “[n]o, go

      ahead. You can.” Id. at 7. Woolston was instructed to stand with another

      officer near the back of the vehicle while Officer Blackburn conducted the

      search. Officer Blackburn found a green plastic container with a plastic baggie

      inside containing a “crystal like substance[,]” which later tested positive for

      methamphetamine. Id. at 19.             Woolston was arrested and transported to jail.


[4]   On September 11, the State charged Woolston with possession of

      methamphetamine, a Level 6 felony. Woolston subsequently moved to

      suppress “all statements made, items seized, and observations and statements

      made during the illegal stop and search” of his vehicle under the Fourth and

      Fourteenth Amendments to the United States Constitution, and Article 1,

      section 11 of the Indiana Constitution. Appellant’s Appendix, Volume 2 at 22.

      The trial court held a suppression hearing on January 9, 2018, during which

      Woolston testified that he believed the stop was over and he was free to go after




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 3 of 21
      Officer Blackburn returned his license and notified him of the warning. The

      trial court granted Woolston’s Motion to Suppress and the State now appeals. 1



                                  Discussion and Decision
                                       I. Standard of Review
[5]   Our standard of review of a trial court’s ruling on a motion to suppress is

      similar to other sufficiency issues and we evaluate whether there is “substantial

      evidence of probative value that supports the trial court’s decision.” State v.

      Quirk, 842 N.E.2d 334, 340 (Ind. 2006). On review, we do not reweigh the

      evidence or judge the credibility of the witnesses. State v. Janes, 102 N.E.3d

      314, 317 (Ind. Ct. App. 2018), trans. denied. When a trial court grants a motion

      to suppress, the State appeals from a negative judgment and must show that the

      trial court’s ruling on the motion to suppress was contrary to law. Id. This

      court 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.” State v. Estep, 753 N.E.2d 22, 25 (Ind. Ct. App. 2001). The

      ultimate determination on the constitutionality of a search is a legal conclusion

      which we review de novo. McIlquham v. State, 10 N.E.3d 506, 511 (Ind. 2014).

      The trial court did not make findings of fact in its order granting Woolston’s




      1
       The State appeals the trial court’s suppression of the evidence which ultimately prevents further prosecution
      of Woolston. Ind. Code § 35-38-4-2(5).



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018                 Page 4 of 21
      motion, thus we presume the trial court found in Woolston’s favor on state and

      federal constitutional grounds.2 State v. Washington, 898 N.E.2d 1200, 1203

      (Ind. 2008). Although the Fourth Amendment and Article 1, section 11 of the

      Indiana Constitution are nearly identical, we analyze alleged violations

      “independently and differently.” Austin v. State, 997 N.E.2d 1027, 1034 (Ind.

      2013).


                                        II. Fourth Amendment
[6]   The Fourth Amendment to the United States Constitution protects against

      unreasonable searches and seizures:


                 The right of the people to be secure in their persons, houses,
                 papers, and effects, against unreasonable searches and seizures,
                 shall not be violated, and no Warrants shall issue, but upon
                 probable cause, supported by Oath or affirmation, and
                 particularly describing the place to be searched, and the persons
                 or things to be seized.


[7]   The protections afforded in the Fourth Amendment extend to the states through

      the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 649 (1961). A traffic

      stop constitutes a “seizure” of a person within the meaning of the Fourth

      Amendment and is reasonable when an officer has probable cause to believe a

      traffic violation offense occurred. Whren v. United States, 517 U.S. 806, 809

      (1996).




      2
          Accordingly, we discuss each argument under the state and federal constitutions formulated on appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018                 Page 5 of 21
[8]   The State challenges the trial court’s grant of Woolston’s motion to suppress

      and argues Woolston was not illegally detained when he answered Officer

      Blackburn’s questions and consented to the search of his vehicle because an

      officer is permitted to briefly ask questions about possible contraband and

      request consent to search during a traffic stop as they “do not ‘measurably

      extend the duration of the stop.’” Brief of Appellant at 10 (quoting Arizona v.

      Johnson, 555 U.S. 323, 333 (2009)). Woolston contends he was unlawfully

      detained as the underlying purpose of the stop concluded when Officer

      Blackburn returned Woolston’s license and issued a warning. Because Officer

      Blackburn “had already handled the matter for which the stop was made[,]”

      Woolston argues that the only purpose in Officer Blackburn’s re-approaching

      the vehicle and questioning Woolston was to “unnecessarily prolong

      [Woolston’s] continued detention.” Brief of Appellee at 8.


[9]   In Rodriguez v. United States, the Supreme Court held the “tolerable duration of

      police inquiries in the traffic-stop context is determined by the seizure’s

      ‘mission’–to address the traffic violation that warranted the stop and attend to

      related safety concerns.” 135 S.Ct. 1609, 1614 (2015) (internal citation

      omitted). A seizure remains lawful so long as the officer’s unrelated questions

      do not measurably extend the duration of the stop. Id. at 1615. In conducting a

      traffic stop, an officer’s mission includes “ordinary inquiries incident to [the

      traffic] stop[,]” such as checking the driver’s license, determining whether there

      are any outstanding warrants for the driver, and verifying the vehicle

      registration and proof of insurance. Id. (alterations in original). Although an


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 6 of 21
       officer may conduct unrelated checks during a lawful traffic stop, he or she may

       not do so in a manner that prolongs the stop, without “reasonable suspicion

       ordinarily demanded to justify detaining an individual.” Id.


[10]   The State asserts that “[a]ny continuing detention must be viewed as a part of

       the traffic stop because the only circumstances suggesting detainment were

       components of the traffic stop[,]” namely the officers, emergency lights, and

       Woolston’s location. Br. of Appellant at 10. However, an officer’s “[a]uthority

       for the seizure . . . ends when tasks tied to the traffic infraction are–or

       reasonably should have been–completed.” Rodriguez, 135 S.Ct. at 1615. Thus,

       Officer Blackburn’s authority to detain Woolston ceased, absent reasonable

       suspicion, after he addressed the underlying purpose of the stop, i.e. when he

       returned Woolston’s driver’s license and issued the verbal warning.


[11]   The fact that Officer Blackburn stepped away from Woolston’s vehicle—even

       momentarily—supports the conclusion that the stop was over. Officer

       Blackburn conceded at trial that Woolston was “free to leave after the business

       of the stop” concluded and Woolston could have driven away if he wanted to.

       Tr., Vol. I at 17. Officer Blackburn stated that it was “[a]fter the stop was over”

       that he asked Woolston if he could continue to speak with him, id. at 6, and

       admitted the traffic stop was over when he re-engaged with Woolston, see id. at

       22. Therefore, once the seizure ended, Officer Blackburn needed reasonable

       suspicion to re-engage Woolston. Rather than arguing Officer Blackburn had

       reasonable suspicion to detain Woolston, however, the State argues that if this



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 7 of 21
       court were to find the stop had concluded, the subsequent conversation between

       Officer Blackburn and Woolston was consensual.


[12]   “A consensual encounter that does not implicate the Fourth Amendment

       occurs when an officer approaches an individual to make a casual and brief

       inquiry and the individual remains free to leave.” Woodson v. State, 960 N.E.2d

       224, 227 (Ind. Ct. App. 2012). To determine whether a consensual encounter

       occurred, we ask whether a reasonable person would have believed he or she

       could disregard the police and “go about his or her business.” Rutledge v. State,

       28 N.E.3d 281, 288 (Ind. Ct. App. 2015). This is an objective test, “not

       whether the particular citizen actually felt free to leave, but ‘whether the

       officer’s words and actions would have conveyed that to a reasonable person.’”

       Id. (citation omitted). A reasonable person may believe he or she is no longer

       free to leave due to the threatening presence of multiple officers, display of a

       weapon by an officer, physical touching of the person, use of language or tone

       of voice indicating compliance may be compelled, Clark v. State, 994 N.E.2d

       252, 261-62 (Ind. 2013), or an accusation of criminal activity, Baxter v. State, 103

       N.E.3d 1180, 1188 (Ind. Ct. App. 2018). And “[w]hat constitutes a restraint on

       liberty prompting a person to conclude that he is not free to ‘leave’ will vary

       depending upon the particular police conduct at issue and the setting in which

       the conduct occurs.” Rutledge, 28 N.E.3d at 289.


[13]   In its brief to the trial court, the State claimed the facts of this case to be

       analogous to the facts in McLain v. State, 963 N.E.2d 662 (Ind. Ct. App. 2012),

       trans. denied. See Appellant’s App., Vol. 2 at 41. On appeal, the State cites this

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 8 of 21
       decision to support its argument that a consensual encounter occurred, arguing

       “this Court found a consensual encounter and voluntary consent to search

       occurred following a traffic stop because the Defendant was aware that he was

       free to go.” Reply Brief of Appellant at 7.


[14]   In McLain, an officer pulled the defendant over for a traffic violation, issued a

       warning ticket, returned the defendant’s license and registration, and asked if he

       had any questions. After advising the defendant he was free to leave, the officer

       asked if the defendant had anything illegal in his car. The defendant replied he

       did not and the officer stated he was curious given defendant’s prior charges for

       possession of marijuana. The officer then asked for consent to search the

       defendant’s vehicle, to which the defendant responded, “I guess if you want

       to.” Id. at 665. This court held that the Fourth Amendment was not implicated

       after the officer returned the license, registration, issued the ticket, and informed

       the defendant he was free to leave. We stated “[a]t that point, [the defendant]

       was in fact free to leave, and he was not required to answer the officer’s

       questions.” Id. at 667. We concluded:


               There is no dispute that [the officer] unequivocally told [the
               defendant] that he was free to leave and returned [his] license and
               registration. After that point, there is no evidence that [the
               officer] displayed a weapon or restricted [the defendant’s]
               movements, or that the language and tone of [the officer’s]
               questions conveyed to [the defendant] that his compliance would
               be compelled. Under these circumstances, we conclude that a
               reasonable person would feel free to leave. In short, the
               interaction between [the defendant] and [the officer] after the
               termination of the traffic stop was merely a consensual

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 9 of 21
               encounter, in which no Fourth Amendment interest is
               implicated. State v. Calmes, 894 N.E.2d 199, 202 (Ind. Ct. App.
               2008); see also State v. Carlson, 762 N.E.2d 121, 125 (Ind. Ct. App.
               2002) (“‘Police questioning, by itself, is unlikely to result in a
               Fourth Amendment violation. While most citizens will respond
               to a police request, the fact that people do so, and do so without
               being told they are free not to respond, hardly eliminates the
               consensual nature of the response.’”) (quoting INS v. Delgado, 466
               U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)).


       Id. at 667.


[15]   The State asserts the following facts support a consensual encounter: Officer

       Blackburn gave Woolston his license back and issued a warning; he stepped

       away from the car before re-approaching; nothing physically restrained or

       impeded Woolston’s car from leaving; Officer Blackburn sought permission to

       continue speaking with Woolston; Officer Blackburn spoke in a normal tone of

       voice, did not draw his weapon, and did not touch or restrain Woolston; two

       officers were present but no evidence suggests the second officer approached

       Woolston’s car; and Woolston remained in his car and lit a cigarette during the

       conversation.


[16]   These facts distinguish this case from cases in which this court has found a non-

       consensual encounter implicating the Fourth Amendment, which have involved

       use of authority to control, order, or restrain the defendant’s freedom. See Clark

       v. State, 994 N.E.2d 252, 263 (Ind. 2013) (no consensual encounter once an

       officer “employed his authority to control and restrict [three men’s] freedom to

       depart” by ordering them to sit on the ground and identify themselves); State v.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 10 of 21
Scott, 966 N.E.2d 85, 90 (Ind. Ct. App. 2012) (holding an initially consensual

encounter lost its consensual nature when an officer retained the defendant’s

license and continued to question him), trans. denied; Woodson v. State, 960

N.E.3d 224, 227-28 (Ind. Ct. App. 2012) (no consensual encounter when an

officer handcuffed the defendant for being “loud” and “belligerent” absent any

threat and prior to obtaining information about the defendant); Crabtree v. State,

762 N.E.2d 241, 245-46 (Ind. Ct. App. 2002) (a reasonable person would not

feel free to leave when an officer shines a flashlight on that person and orders

him to “get your hands up”). Officer Blackburn did not exercise his authority

to control, order, or restrain Woolston’s freedom. We therefore agree with the

State and conclude this was a consensual stop and the Fourth Amendment was

not implicated.3




3
  At this point, we pause briefly to express our concern with the facts presented. Officer Blackburn testified
that several indicators raised his suspicion “that there was something inside the vehicle [Woolston] didn’t
want [him] to know about”: Woolston lit a cigarette and his hand was shaking when he provided his license,
indicators of nervousness. Tr., Vol. I at 16. Although Woolston was free to decline Officer Blackburn’s
request, we note that had Woolston done so, this likely would have only further raised Officer Blackburn’s
suspicion that Woolston was, in fact, hiding something in his vehicle, potentially forming the basis for Officer
Blackburn’s continued questioning anyway. We therefore take this opportunity to remind both officers and
the public alike that the exercise of one’s right to refuse to answer police questioning or the right to refuse a
search cannot form the sole basis for reasonable suspicion or probable cause. See, e.g., Illinois v. Wardlow, 528
U.S. 119, 125 (2000) (“refusal to cooperate, without more, does not furnish the minimal level of objective
justification needed for a detention or seizure”).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018                  Page 11 of 21
                                    III. Article 1, Section 11
                          A. Was Woolston Unlawfully Detained?
[17]   The State asserts that Officer Blackburn’s questioning and request for consent to

       search did not violate Article 1, section 11 of the Indiana Constitution. It

       states:


                 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.


[18]   An analysis under this provision requires that we focus on whether the officer’s

       conduct was reasonable in light of the totality of the circumstances. Powell v.

       State, 912 N.E.2d 853, 863 (Ind. Ct. App. 2009). In conducting this

       determination, we balance: (1) the degree of concern, suspicion, or knowledge

       that a violation has occurred; (2) the degree of intrusion the method of the

       search or seizure imposes on the citizen’s ordinary activities; and (3) the extent

       of law enforcement needs. Id.


[19]   The State argues that Officer Blackburn’s brief questioning and request for

       consent is proper based on our supreme court’s clarification of State v. Quirk,

       842 N.E.2d 334 (Ind. 2006), in State v. Washington, 898 N.E.2d 1200 (Ind.

       2008). In Quirk, the supreme court affirmed the trial court’s judgment granting

       a defendant’s motion to suppress under the Indiana constitution. There, an


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 12 of 21
       officer stopped Quirk for a traffic violation, issued a warning ticket, and

       informed him he was free to go. The officer then approached his patrol car and

       another officer on the scene informed him of Quirk’s criminal history, which

       included multiple entries for possible drug trafficking. The officer called to

       Quirk and stated he wanted to ask a few more questions. Quirk complied and

       got into the officer’s vehicle where the officer asked questions related to

       whether Quirk was carrying any illegal substances. He then asked to search the

       trailer portion of the Quirk’s truck. Quirk consented. Although the search did

       not reveal any illegal substances, the officer asked Quirk for consent to search

       the cabin of the trailer. Quirk declined and was permitted to leave. Quirk then

       drove to a rest area and went inside the facility. When Quirk exited the facility,

       officers notified him he was free to leave but his truck would have to remain.

       Twenty minutes later, officers with a canine unit arrived and a dog alerted the

       officers to the presence of a controlled substance upon circling the truck. A

       subsequent search revealed cocaine in the cabin and Quirk was arrested.


[20]   Finding Quirk’s detention to be prolonged beyond the time necessary to issue

       the warning and therefore unreasonable, the court affirmed the trial court’s

       decision to suppress the evidence and later clarified in Washington that the issue

       was “the reasonableness of the temporary seizure of the truck, not that of any

       police question put to the driver.” Washington, 898 N.E.2d at 1207. The State

       asserts that “Washington’s clarification shows that the brief questioning at the

       end of the traffic stop in Quirk – which was very similar to the questioning here

       – was not a basis for suppression.” Reply Br. of Appellant at 6.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 13 of 21
[21]   Moreover, our supreme court held in Washington that an officer’s questioning

       and request for consent to search after a terminated traffic stop is generally not

       prohibited by Article 1, section 11 of the Indiana Constitution. 898 N.E.2d at

       1207. Although the questioning is not prohibited by our state constitution, we

       evaluate whether Officer Blackburn’s conduct was reasonable under the totality

       of the circumstances by balancing three factors. Powell, 912 N.E.2d at 863. In

       conducting this determination, we balance: (1) the degree of concern, suspicion,

       or knowledge that a violation has occurred; (2) the degree of intrusion the

       method of the search or seizure imposes on the citizen’s ordinary activities; and

       (3) the extent of law enforcement needs. Id. We construe the constitutional

       provision liberally so as to guarantee the rights of people against unreasonable

       searches and seizures. Mundy v. State, 21 N.E.3d 114, 118 (Ind. Ct. App. 2014).


[22]   There is no dispute as to the validity of the initial traffic stop. This court upheld

       an officer’s questioning and request for consent to search the defendant’s

       vehicle after the officer advised him he was free to go. McLain, 963 N.E.2d at

       670. In McLain, the court relied on Callahan v. State,4 a case in which we

       rejected the defendant’s argument “that the state constitution required a police

       officer to have reasonable suspicion of illegal activity before asking permission

       to search after the termination of a valid traffic stop.” McLain, 963 N.E.2d at

       669. Regardless, the degree of concern, suspicion, or knowledge Officer




       4
           719 N.E.2d 430 (Ind. Ct. App. 1999).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 14 of 21
       Blackburn had was extremely low. Officer Blackburn testified that Woolston

       exhibited signs of nervousness, which led him to believe Woolston was hiding

       something. “Because it is not at all unusual that a citizen may become nervous

       when confronted by law enforcement officials, other evidence that a person

       may be engaged in criminal activity must accompany nervousness before the

       nervousness will evoke suspicion necessary to support detention.” Quirk, 842

       N.E.2d at 341. Because this is the only evidence presented at trial pertaining to

       Officer Blackburn’s degree of concern, suspicion or knowledge, this factor

       favors Woolston.


[23]   The degree of intrusion of Officer Blackburn’s conduct on Woolston’s ordinary

       activities was minor and weighs in favor of the State. The degree of intrusion is

       assessed from the defendant’s point of view. Mundy, 21 N.E.3d at 118. In

       Washington, our supreme court held an officer’s question at the end of a traffic

       stop as to whether the defendant had any drugs or weapons on his person

       reasonable under the state constitution. 898 N.E.2d at 1206-07. There, the

       court determined the intrusion was “slight” as the officer “merely asked the

       defendant a brief question, one that not only asked if he had drugs, but also if

       he had weapons or other items that may harm the officer.” Id. at 1206. Here,

       Officer Blackburn returned to Woolston’s car and asked permission to continue

       to speak with him and Woolston agreed.


[24]   As to the extent of law enforcement needs, we consider of the nature and

       immediacy of the governmental concern. Masterson v. State, 843 N.E.2d 1001,

       1007 (Ind. Ct. App. 2006), trans. denied. In Washington, the court held the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 15 of 21
       officer’s question “consistent with the officer’s concern for his own safety and

       law enforcement’s responsibilities to deter crime, to intercept criminal activity,

       and to apprehend its perpetrators.” 898 N.E.2d at 1206. Balancing all of the

       factors, we cannot conclude Officer Blackburn’s conduct was unreasonable

       under the totality of the circumstances.


                   B. Was Woolston Entitled to a Pirtle Warning?
[25]   In his brief to the trial court, Woolston claimed Officer Blackburn did not

       obtain valid consent to search his vehicle because Officer Blackburn failed to

       give him Pirtle warnings, a conclusion we presume the trial court agreed with.

       See Washington, 898 N.E.2d at 1203. The State contends Woolston was not in

       custody when he consented to the search and therefore, was not entitled to a

       Pirtle warning. Our supreme court has held that a person in police custody

       asked to give consent to a search is entitled to the presence and advice of

       counsel prior to making the decision whether to provide consent. Pirtle v. State,

       263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975). In determining whether a person

       is in custody, 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.” Janes, 102 N.E.3d at 318. Courts consider a variety of factors to

       determine whether an encounter is custodial, including whether a reasonable

       person would feel free to leave, id., and we examine the circumstances for

       “objectively overpowering, coercive, or restraining police behavior” that suggest

       a formal arrest, Meredith v. State, 906 N.E.2d 867, 873 (Ind. 2009). Although a



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 16 of 21
       person is seized and temporarily not free to leave during an investigatory stop,

       he or she is not ordinarily considered to be in custody. Id.


               A non-exhaustive list of relevant factors our cases have identified
               includes: whether the defendant was read his Miranda rights,
               handcuffed, restrained in any way, or told that he was a suspect
               in a crime; how vigorous was 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 (internal citations omitted).


[26]   The State argues “nothing about the circumstances suggest that [Woolston] was

       in custody” as he remained in his vehicle before consenting and Officer

       Blackburn spoke in a normal tone of voice, did not draw his weapon, or

       physically restrain Woolston. Br. of Appellant at 12. On the other hand,

       Woolston maintains that “[a] reasonable person, pulled over by two officers

       while one is standing at the driver’s door, and police lights are engaged, would

       not have any expectation that they could just leave the scene freely without

       consequence, including criminal charges for fleeing law enforcement.” Br. of

       Appellee at 11.


[27]   Viewed most favorably to the trial court’s decision, the record reveals that

       Woolston was pulled over at night, the patrol vehicle was positioned directly

       behind Woolston’s vehicle with its lights flashing, and two uniformed officers

       were on the scene. Officer Blackburn stood at the driver’s window while the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 17 of 21
       other officer stood behind him or nearby as he asked Woolston about

       contraband and requested consent to search his car. Woolston testified that

       when Officer Blackburn walked back up to his window he did not feel free to

       drive away because the “[l]ights were on and [Officer Blackburn] was standing

       there.” Tr., Vol. 1 at 28. At that point, Woolston did not feel free to refuse to

       speak with Officer Blackburn and answer his questions. However, there is no

       evidence in the record of any of the above listed factors suggesting Woolston

       was in custody. To the extent the trial court granted the motion to suppress due

       to a Pirtle violation, we cannot say there is substantial evidence of “objectively

       overpowering, coercive, or restraining police behavior” suggesting Woolston

       was under formal arrest requiring Pirtle warnings. Meredith, 906 N.E.2d at 873.


                                     IV. Voluntary Consent
[28]   Finally, the State argues Woolston’s consent to search was voluntary. Under

       the Fourth Amendment and the Indiana Constitution, the State bears the

       burden of proving consent was “voluntarily given, and not the result of duress

       or coercion, express or implied.” McIlquham, 10 N.E.3d at 511. Voluntariness

       is a question of fact to be determined from the totality of the circumstances and

       consent is valid unless “procured by fraud, duress, fear, or intimidation or

       where it is merely a submission to the supremacy of the law.” Id.


[29]   In its brief to the trial court, the State outlined eight factors considered in

       determining whether a defendant’s consent is voluntary under the totality of the

       circumstances:


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 18 of 21
                   whether the defendant was advised of Miranda rights prior to
                   the search, the defendant’s degree of education and
                   intelligence, whether the defendant was advised of his right to
                   refuse consent, whether the defendant has previous
                   encounters with law enforcement, whether the officer made
                   any express or implied claims of authority to search without
                   consent, whether the officer was engaged in any illegal action
                   prior to the request, whether the defendant was cooperative
                   previously and whether the officer was deceptive as to his
                   true identity or the purpose of the search.


       Appellant’s App., Vol. 2 at 46 (citing Navarro v. State, 855 N.E.2d 671, 677 (Ind.

       Ct. App. 2006)).


[30]   Arguing only two factors favored Woolston, that he was not given Miranda

       warnings or told he had the right to refuse, the State maintained that the

       remaining factors were in its favor except that there was no evidence as to

       whether Woolston had any prior encounters with law enforcement. See

       Appellant’s App., Vol. 2 at 46. Under the totality of the circumstances, there is

       no substantial evidence of probative value demonstrating Woolston’s consent to

       search was obtained by fraud, duress, fear, or intimidation, or a submission to

       the law. We agree with the State.



                                              Conclusion
[31]   For the foregoing reasons above, we reverse the trial court’s judgment and

       remand for further proceedings consistent with this opinion.


[32]   Reversed and remanded.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 19 of 21
       May, J., concurs.


       Baker, J., dissents with opinion.




                                                 IN THE
           COURT OF APPEALS OF INDIANA

       State of Indiana,                                       Court of Appeals Case No.
                                                               18A-CR-1091
       Appellant-Plaintiff,

               v.

       Dylan S. Woolston,
       Appellee-Defendant.



       Baker, Judge, dissenting.


[33]   I respectfully dissent because I do not believe that a reasonable person in

       Woolston’s shoes would have believed he or she could disregard the police

       presence and go about his or her business. Officer Blackburn issued the

       warning and, after taking a few steps toward his police vehicle, turned around

       and prolonged their encounter. The officer did not tell Woolston he was free to

       leave after issuing the warning. And Officer Blackburn did not return to his

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018   Page 20 of 21
marked vehicle—which held a second officer and continued to flash its police

lights—after issuing the warning but instead turned around to continue the

conversation with Woolston. I simply do not believe it credible that an average

citizen, under these circumstances, would feel free to leave. 5 Consequently, I

believe that the trial court properly granted Woolston’s motion to suppress

because the search of the vehicle violated the Fourth Amendment to the United

States Constitution.




5
 I also share the majority’s concern that if Woolston had refused Officer Blackburn’s request to search his
vehicle, the officer would have believed he had reasonable suspicion to continue the encounter.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1091 | December 31, 2018                Page 21 of 21
