                                                                                 FILED
                                                                             Dec 19 2019, 9:38 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                          Curtis T. Hill, Jr.
      Christopher Taylor-Price                                  Attorney General of Indiana
      Marion County Public Defender Agency                      Ian McLean
      – Appellate Division
                                                                Supervising Deputy Attorney
      Indianapolis, Indiana                                     General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Michael Scanland,                                         December 19, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-790
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable John M. Christ,
      Appellee-Plaintiff.                                       Magistrate
                                                                Trial Court Cause No.
                                                                49G14-1801-F6-1620



      Mathias, Judge.


[1]   Following a jury trial in Marion Superior Court, Michael Scanland

      (“Scanland”) was convicted of Class C misdemeanor possession of

      paraphernalia and sentenced to forty days in jail. Scanland appeals and presents


      Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019                           Page 1 of 16
      two issues, which we restate as: (1) whether the trial court abused its discretion

      by determining that Scanland was not subject to custodial interrogation and

      that the statements he made to a parole agent were therefore admissible even

      though Scanland was not advised of his Miranda rights; and (2) whether the trial

      court abused its discretion by admitting evidence of drug paraphernalia found

      in Scanland’s home following a search based on the statements Scanland made

      to the parole agent. Concluding that Scanland was not subject to custodial

      interrogation, we affirm.


                                           Statement of Facts1
[2]   Scanland was convicted of murder in 1995. He was released on parole on

      December 22, 2016. The terms of his parole release agreement included the

      following:


              5. ABUSE OF ALCOHOL OR CONTROLLED
              SUBSTANCE – I understand that the following is a violation of
              my parole:

                   a) Being intoxicated, or




      1
        We held oral argument in this case on December 10, 2019, at Winamac Community High School in
      Winamac in Pulaski County, Indiana. We thank the faculty, staff, and students of Winamac Community
      High School for their gracious hospitality, and we thank all students present for their attention during the
      argument and their thoughtful questions following the argument. We also commend counsel for both parties
      for the quality of their written and oral advocacy. Lastly, we note that, with this oral argument in Pulaski
      County, our court has now held an oral argument in all ninety-two Indiana counties through our Appeals on
      Wheels program.

      Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019                            Page 2 of 16
                   b) Using, possessing, or trafficking illegally in a controlled substance.
                   Abuse of alcohol or drugs is not a defense for violation of the
                   parole release agreement.

                                                       ***

              7. CRIMINAL CONDUCT – I will not engage in conduct
              prohibited by federal or state law or local ordinance.

                                                       ***

              9. HOME VISITATION AND SEARCH –

                   a) I will allow my supervising officer or other authorized
                   officials of the Department of Correction to visit my residence
                   and place of employment at any reasonable time.

                   b) I understand that I am legally in the custody of the
                   Department of Correction and that my person and residence or
                   property under my control may be subject to reasonable search by my
                   supervising officer or authorized official of the Department of
                   Correction if the officer or official has reasonable cause to believe that
                   the parolee is violating or is in imminent danger of violating a
                   condition to remaining on parole.


      Ex. Vol., State’s Ex. 1 (emphases added).


[3]   In January 2018, Scanland was living with his girlfriend Sandra Burrow

      (“Sandra”) in Marion County, Indiana. Scanland and Sandra had issues with

      their neighbor, and the police were called to Scanland’s home several times as a

      result. During one altercation, the neighbor, according to Scanland, threatened

      his life. Sandra called the police to report this, and the police investigated.

      Scanland later called the police himself to obtain the incident report number.


      Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019                  Page 3 of 16
      The supervising officer on duty, Sgt. Stargel, told Scanland to go to

      Indianapolis Metropolitan Police Department (“IMPD”) Northwest District

      Headquarters the following day and speak with Sgt. Grimes for assistance with

      mediating the dispute with his neighbor. Sgt. Stargel also advised Scanland to

      talk to his parole officer. Sgt. Stargel then emailed Sgt. Grimes about Scanland,

      an email that was later forwarded to another parole agent, Eric Vanatti (“Agent

      Vanatti”), who worked at the Northwest District Headquarters.


[4]   The day after the incident with the neighbor, Scanland and Sandra went to the

      Northwest District Headquarters to speak with Sgt. Grimes. Believing that they

      were not getting proper assistance, Scanland and Sandra became upset. From

      his office, Agent Vanatti heard a man shouting and a woman crying. He got up

      to investigate and saw Scanland and Sandra causing the disturbance. Agent

      Vanatti was wearing a polo shirt and his badge. He asked Scanland to sit at a

      table in the lobby, but Scanland remained standing.


[5]   Agent Vanatti asked Scanland to come to his office. There, Agent Vanatti asked

      Scanland to take a drug test, as Vanatti believed Scanland to be under the

      influence of a controlled substance. Scanland, who was still agitated,

      responded, “I’m not going to. I’m dirty,” meaning that he had been using illicit

      drugs. Tr. Vol. 2, p. 25. When Agent Vanatti asked what drug Scanland had

      been using, he told Vanatti that he had been using methamphetamine. Id. at

      174. Agent Vanatti told Scanland that he still needed to do a urine screen and

      took him to the restroom. Scanland, however, refused to submit to the test.

      Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019     Page 4 of 16
      Agent Vanatti therefore took Scanland back to his office, where Scanland

      confirmed yet again that he refused to submit to the drug screen. Agent Vanatti

      then placed Scanland in handcuffs and began to complete a Department of

      Correction (“DOC”) form titled “TRANSMITTAL – PAROLE BOARD

      ACTION,” detailing Scanland’s refusal to submit to the drug screen, his

      conflict with his neighbor, and requesting a warrant for Scanland’s arrest. Ex.

      Vol., Defendant’s Ex. D.


[6]   As Agent Vanatti typed up his report, Scanland stated, without prompting, that

      he had been using methamphetamine from 2:00 a.m. to 11:00 a.m. that

      morning. He then asked Agent Vanatti to go to Scanland’s home and retrieve

      the pipe he used to smoke methamphetamine. Scanland stated that the pipe was

      hidden inside a sock in a dresser drawer of his bedroom. Scanland wanted

      Agent Vanatti to get the pipe because he was afraid that Sandra might find it

      and was concerned for her health.2


[7]   Agent Vanatti, two other parole agents, and an IMPD officer accompanied

      Scanland to his home. The officers searched for and found two pipes hidden in

      dresser drawers in Scanland’s bedroom. One pipe was found inside a sock and

      the other inside a glove. The officers then obtained a warrant to search the




      2
       Scanland also told Agent Vanatti that he “didn’t want to do what he did to the person as to why he was on
      parole,” i.e., murder, and was concerned that his conflict with his neighbor might escalate to that point. Tr.
      Vol. 2, p. 15.

      Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019                               Page 5 of 16
      home for drugs. Subsequent testing revealed the presence of methamphetamine

      residue on the pipes.


                                             Procedural History
[8]   On January 16, 2018, the State charged Scanland with Level 6 felony

      possession of methamphetamine and Class C misdemeanor possession of

      paraphernalia.3 Scanland filed a motion to suppress on July 2, 2018, claiming

      that the statements he made to Agent Vanatti were inadmissible because he had

      not been advised of his Miranda rights and that the evidence found during the

      subsequent search of his home was inadmissible as it was conducted due to his

      inadmissible statements. The trial court held a hearing on Scanland’s motion on

      August 23, 2018, and entered an order denying the motion on November 1,

      2018. Scanland filed a motion to correct error4 on November 27, 2018, which

      the trial court denied on January 18, 2019.


[9]   A jury trial was held on March 11, 2019. At trial, Scanland objected to the

      introduction of his statements to Agent Vanatti and the admission of the drug

      pipes. The trial court overruled Scanland’s objections, and the jury found



      3
       The State also charged Scanland with Class B misdemeanor possession of marijuana, but the State
      dismissed this charge prior to trial.
      4
        Because Scanland’s motion asked the trial court to reconsider its ruling on his pre-trial motion to suppress,
      which is not a final appealable order, the motion was actually a motion to reconsider, not a motion to correct
      error. See Citizens Indus. Grp. v. Heartland Gas Pipeline, LLC, 856 N.E.2d 734, 737 (Ind. Ct. App. 2006) (noting
      that a party may file a motion to reconsider while the case is in fieri and that a motion to correct error is
      proper only after the entry of final judgment), trans. denied.



      Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019                               Page 6 of 16
       Scanland guilty of possession of paraphernalia but not guilty of possession of

       methamphetamine. The trial court sentenced Scanland to forty days in jail, with

       credit for twenty days already served.5 Scanland now appeals.


                                           Standard of Review
[10]   Because Scanland appeals following his conviction, and not from an

       interlocutory order denying his motion to suppress, the issue before the court is

       one of the admission of evidence. See Hicks v. State, 5 N.E.3d 424, 427 (Ind. Ct.

       App. 2014), trans. denied. A trial court has broad discretion in ruling on the

       admissibility of evidence, and we will reverse the trial court’s ruling only when

       the trial court abuses that discretion. Id. A trial court abuses its discretion when

       its decision is clearly against the logic and effect of the facts and circumstances

       before it, or if the court has misinterpreted the law. Id. Whether the challenge is

       made through a pretrial motion to suppress or by an objection at trial, our

       review of rulings on the admissibility of evidence is essentially the same, i.e. we

       do not reweigh the evidence, and we consider conflicting evidence in a light

       most favorable to the trial court’s ruling, but we may also consider any

       undisputed evidence that is favorable to the defendant. Id. Additionally, we

       may consider foundational evidence introduced at trial in conjunction with any

       evidence from a suppression hearing that is not in direct conflict with the trial


       5
        We note that, as a result of this incident, Scanland’s parole was revoked, and the Indiana Department of
       Correction’s online “Offender Search” now lists Scanland’s “earliest possible release date” as 2035. See
       https://www.in.gov/apps/indcorrection/ofs/ofs?lname=scanland&fname=michael&search1.x=0&search1.
       y=0.

       Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019                          Page 7 of 16
       evidence. Id. At a suppression hearing, the State bears the burden of

       demonstrating the constitutionality of measures it used to secure evidence.

       McIntosh v. State, 829 N.E.2d 531, 536 (Ind. Ct. App. 2005), trans. denied.


                                I. Scanland’s Statements to the Parole Agent

[11]   Scanland claims that he was in custody and subject to the functional equivalent

       of interrogation and that he should therefore have been advised of his Miranda

       rights. Because he was not so advised, Scanland argues that his statements to

       the police should have been excluded.


[12]   The Fifth Amendment to the United States Constitution grants to individuals

       the right to be free from self-incrimination. Hartman v. State, 988 N.E.2d 785,

       788 (Ind. 2013) (citing U.S. Const. amend. V (“No person . . . shall be

       compelled in any criminal case to be a witness against himself. . . .”)). This

       constitutional protection applies to the states via the Fourteenth Amendment.

       Id. (citing Malloy v. Hogan, 378 U.S. 1, 6 (1964)).6 In Miranda v. Arizona, 384

       U.S. 436, 444 (1966), the United States Supreme Court held that, to protect this

       right against self-incrimination, a person questioned by law enforcement

       officers after being taken into custody or otherwise deprived of his freedom of

       action in any significant way must first be warned that he has a right to remain

       silent, that any statement he does make may be used as evidence against him,


       6
        The Indiana Constitution contains a similarly worded protection against compelled self-incrimination. See
       Ind. Const. Art. 1, Sec. 14 (“No person, in any criminal prosecution, shall be compelled to testify against
       himself.”). Scanland makes no argument under the Indiana Constitution.

       Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019                            Page 8 of 16
       and that he has a right to the presence of an attorney, either retained or

       appointed. See State v. Brown, 70 N.E.3d 331, 335 (Ind. 2017) (summarizing

       Miranda holding).


[13]   Statements obtained from the custodial interrogation of a suspect who has not

       been advised of his or her Miranda rights are generally inadmissible. Bailey v.

       State, 763 N.E.2d 998, 1001 (Ind. 2002) (citing Miranda, 384 U.S. at 444). An

       officer is only required to give Miranda warnings when a defendant is both (1) in

       custody and (2) subject to interrogation. Furnish v. State, 779 N.E.2d 576, 578–

       79 (Ind. Ct. App. 2002), trans. denied.


       A. Custody

[14]   The question of whether a person is in custody for purposes of Miranda is a

       mixed question of fact and law. State v. Ruiz, 123 N.E.3d 675, 679 (Ind. 2019).

       The test for whether a defendant is in custody is not whether a defendant feels

       free to go, but rather whether there was a “‘formal arrest or restraint on freedom

       of movement’ of the degree associated with a formal arrest.” Brown, 70 N.E.3d

       at 336 (citing Stansbury v. California, 511 U.S. 318 (1994)). We look to the

       totality of the circumstances to determine whether a person was in custody.

       Brown, 70 N.E.3d at 335.


[15]   Scanland argues that, once he was placed in handcuffs in Agent Vanatti’s office,

       he was in custody. Indeed, we have held before that the use of handcuffs

       restrains an individual’s freedom of movement to the degree associated with a


       Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019         Page 9 of 16
       formal arrest. Wright v. State, 766 N.E.2d 1223, 1230 (Ind. Ct. App. 2002)

       (citing Loving v. State, 647 N.E.2d 1123, 1125 (Ind. 1995)); see also Hudson v.

       State, 129 N.E.3d 220, 225 (Ind. Ct. App. 2019) (holding that suspect who was

       placed in handcuffs was in custody). The State does not deny that, once

       Scanland was placed in handcuffs, he was in custody.


[16]   It is therefore undisputed that Scanland was in custody for Miranda purposes

       after he was placed in handcuffs in Agent Vanatti’s office, which was when he

       made the incriminating statements regarding the drug pipes in his home.

       Because it is undisputed that Scanland was in custody at the time he made his

       incriminating statements, we must determine whether he was subject to

       interrogation while in custody. See Furnish, 779 N.E.2d at 578–79.


       B. Interrogation

[17]   Scanland argues that the statements he made to Agent Vanatti regarding the

       drug pipes in his home were made during the functional equivalent of

       interrogation, thus necessitating a Miranda advisement. Scanland is correct that,

       under Miranda, “‘interrogation’ refers to ‘either express questioning or its

       functional equivalent.’” Hartman, 988 N.E.2d at 788 (quoting Rhode Island v.

       Innis, 446 U.S. 291, 301 (1980)). The functional equivalent of interrogation

       “refers not only to express questioning, but also to any words or actions on the

       part of the police . . . that the police should know are reasonably likely to elicit

       an incriminating response from the suspect.” B.A. v. State, 100 N.E.3d 225, 233

       (Ind. 2018), “Police custody alone does not trigger Miranda; there must be
       Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019       Page 10 of 16
       police interrogation as well.”) Id. (citing Innis, 446 U.S. at 301). The focus is the

       suspect’s perceptions, not police intent. Id. The focus on the suspect’s

       perception “reflects the fact that the Miranda safeguards were designed to vest a

       suspect in custody with an added measure of protection against coercive police

       practices, without regard to objective proof of the underlying intent of the

       police.” Innis, 446 U.S. at 301.


[18]   However, “since the police surely cannot be held accountable for the

       unforeseeable results of their words or actions, the definition of interrogation

       can extend only to words or actions on the part of police officers that they

       should have known were reasonably likely to elicit an incriminating response.” Id. at

       301–02 (emphasis added). In contrast, “[a] wholly volunteered and unsolicited

       statement by the accused is not the product of a custodial interrogation such

       that any advisement of rights need be given.” Tacy v. State, 452 N.E.2d 977, 982

       (Ind. 1983).


[19]   Scanland contends that the totality of circumstances surrounding his statements

       constituted the functional equivalent of interrogation.7 Specifically, he notes

       that, at the time of his statement, he was handcuffed and seated in Agent

       Vanatti’s office as Vanatti typed up a report that included a request for a




       7
         Scanland appears to argue that Agent Vanatti should have known that his action of taking Scanland into
       custody was reasonably likely to evoke an incriminating response given Scanland’s status as a parolee. But
       this conflates the question of custody with the question of interrogation. “[An] interrogation must involve a
       measure of compulsion beyond that inherent in custody itself[.]” Hudson, 129 N.E.3d at 225.

       Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019                             Page 11 of 16
       warrant based on Scanland having violated his parole by using

       methamphetamine. Scanland also notes that Agent Vanatti knew that he was

       on parole, agitated, and likely still under the influence of methamphetamine.

       But this falls short of conduct Agent Vanatti should have known was

       reasonably likely to evoke an incriminating response.8


[20]   Agent Vanatti repeatedly testified that he did not ask any questions of Scanland

       prior to Scanland’s statements regarding the pipes. Although Scanland claims

       that Agent Vanatti was talking to him, Agent Vanatti testified that Scanland

       made his incriminating statements while Vanatti was busy completing the

       Transmittal form, and the trial court was within its discretion to credit Agent

       Vanatti’s testimony over Scanland’s. See note 8, supra. Nothing Agent Vanatti

       said or did was the functional equivalent of interrogation. Indeed, there is no

       indication that Agent Vanatti spoke with Scanland in any manner in an attempt

       to get incriminating statements from him. Cf. Brewer v. Williams, 430 U.S. 387,

       392–93 (1977) (holding that officer’s statements to defendant that he should




       8
         Scanland also claims that Agent Vanatti told Sandra that Scanland was going back to prison for violating
       parole. He also claims that Vanatti told someone on the telephone that there were “bricks of dope” in
       Scanland’s home. Tr. Vol. 2, p. 73. These allegations, however, are supported only by Scanland’s testimony,
       which the trial court was not obligated to credit. At oral argument, Scanland contended that his statements
       were uncontradicted and noted that we may consider undisputed evidence that is favorable to the defendant.
       Hicks, 5 N.E.3d at 427. Although not specifically contradicted by Agent Vanatti, his testimony did not
       include any account of such statements to Scanland. Thus, we do not consider these facts to be truly
       undisputed.



       Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019                          Page 12 of 16
       disclose the location of the child victim’s body so that there could be a

       “Christian burial” was the functional equivalent of an interrogation). 9


[21]   In short, the trial court did not abuse its discretion by determining that, even

       though Scanland was in custody when he made the statements regarding the

       drug pipes in his home, he was not subject to interrogation or the functional

       equivalent thereof. His statements were instead voluntary and therefore

       admissible even though Scanland was not advised of his Miranda rights.


                                     II. The Search of Scanland’s Home

[22]   Scanland also argues that the search of his home was unreasonable because it

       was based on his statements that he claims were obtained in violation of his

       Miranda rights. Scanland notes that the terms of his parole release agreement

       state that he was subject to “reasonable search” by his parole officer or an

       official of the DOC “if the officer or official has reasonable cause to believe that

       the parolee is violating or is in imminent danger of violating a condition to

       remain on parole.” Ex. Vol., State’s Ex. 1. Scanland argues that the search




       9
         Scanland notes that Vanatti asked him to fill out an “admission of guilt” form wherein he admitted that he
       had used methamphetamine. But Vanatti asked Scanland to fill out this form only after Scanland admitted
       that he had drug pipes in his home. Tr. Vol. 2, pp. 13–14. Thus, this request could not be considered
       interrogation that led to the incriminating statements. We acknowledge that, after Scanland stated that he
       would test positive for illicit drug use, Vanatti asked Scanland what drugs he had been using, to which
       Scanland replied that he had been using methamphetamine. To be sure, this was an express question. But this
       occurred when Scanland first refused to submit to the drug screen, which was before he was placed in
       handcuffs. Tr. Vol. 2, pp. 13, 25, 174, 198. Thus, Scanland was not in custody when asked this question.
       Moreover, by stating that he would fail the drug test, Scanland had already admitted to using illicit drugs.



       Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019                          Page 13 of 16
       cannot be deemed reasonable or justified by reasonable cause because the

       search of his home was based on statements that, he claims, were obtained in

       violation of Miranda.10


[23]   We have already concluded, however, that Scanland’s statements to the parole

       agent regarding the drug pipes in his home were not the product of a custodial

       interrogation. His statements alone were sufficient to establish reasonable cause

       to believe that Scanland was in violation of the terms of his probation by using

       illicit drugs and possessing drug paraphernalia.


[24]   It is also important to remember that Scanland’s behavior and statements to

       Agent Vanatti in Vanatti’s office fall clearly under the terms of his parole

       agreement. In Paragraph 9(b) of the Parole Release Agreement, Scanland

       agreed that his “person and residence” were subject to reasonable search by

       DOC officials if the officials had “reasonable cause to believe” that Scanland

       had violated the terms of his parole. Ex. Vol., State’s Ex. 1. At the police

       station, Scanland acted in a manner suggesting that he was under the influence

       of a controlled substance. The use of a controlled substance was in violation of

       the terms of both Paragraph 5(b) (prohibiting the use of controlled substances)

       and Paragraph 7 (forbidding illegal conduct) of the Parole Release Agreement.



       10
         Scanland also argues that, during the search, he was asked by officers where his bedroom was. He claims
       that his answer directing the officers to his bedroom was the result of custodial interrogation and that the
       State relied upon his answer in establishing constructive possession of the drug pipes. We are not persuaded.
       Scanland had already volunteered that the drug pipes were in his home and where they were located inside
       his home. This alone was sufficient to establish his constructive possession of the pipes.

       Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019                            Page 14 of 16
       Scanland was thus required to submit to the urine screen, as it was a reasonable

       search of his person based on Agent Vanatti’s reasonable belief that Scanland

       was under the influence of a controlled substance. When Scanland refused to

       submit to the drug screen, he also admitted that he would test positive for illicit

       drugs. Scanland’s behavior, his refusal to submit to the urine screen, and his

       admission were sufficient to establish reasonable cause to search his home

       under the terms of the Parole Release Agreement. We therefore conclude that

       the search of Scanland’s home for the drug pipes was proper under the terms of

       the Parole Relase Agreement, as well as under the rubric of non-custodial

       interrogation.11 The trial court therefore did not abuse its discretion by

       admitting the pipes into evidence.


                                                    Conclusion
[25]   Scanland’s statements to the parole agent that there were drug pipes in his

       home were made while Scanland was in custody, but he was not subject to

       custodial interrogation or the functional equivalent of interrogation. The failure

       to advise Scanland of his Miranda rights therefore did not render his statements

       inadmissible. Additionally, Scanland’s statements to the parole agent that he

       had been using methamphetamine and that there were drug pipes in his home

       established reasonable cause to search his home under the terms of his parole

       release agreement. The trial court therefore did not err by admitting the pipes


       11
         Because we conclude that the trial court did not err in the admission of the pipes or Scanland’s statements,
       we need not address his argument that the admission of his statements and the pipes was not harmless error.

       Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019                             Page 15 of 16
       into to evidence. Because the trial court did not abuse its discretion in the

       admission of this evidence, we affirm the judgment of the trial court.


[26]   Affirmed.


       Vaidik, C.J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-790 | December 19, 2019     Page 16 of 16
