 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,         Jan 30 2014, 9:52 am
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

BRYAN L. COOK                                        GREGORY F. ZOELLER
Indianapolis, Indiana                                Attorney General of Indiana

                                                     BRIAN REITZ
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JOHN MCLAUGHLIN,                                     )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 49A05-1305-CR-245
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


          INTERLOCUTORY APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Jose Salinas, Judge
                       Cause No. 49G14-1207-FD-47894


                                          January 30, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Chief Judge
                                     Case Summary

       A police officer pulled over John McLaughlin for driving erratically; asked him for

his license and registration; noticed he had bloodshot eyes, was nervous and fidgety, was

sweating profusely, and was speaking rapidly but clearly; and asked him if he was okay

and if he needed medical assistance. McLaughlin said his air conditioner was broken, but

he was okay and did not need medical assistance.           The officer ran McLaughlin’s

information and determined that he was a valid driver. After returning McLaughlin’s

license and registration, the officer asked McLaughlin if he could search his car.

McLaughlin agreed, and drugs were found.           The State charged McLaughlin with

possession of heroin, and McLaughlin filed a motion to suppress, which the trial court

denied.

       McLaughlin now pursues this discretionary interlocutory appeal arguing that his

Pirtle rights were violated because he was in custody and the officer did not advise him of

his right to consult an attorney before asking for his consent to search his car. Although

the officer did not advise McLaughlin of his right to consult an attorney, we find that this

was a conventional traffic stop and McLaughlin was not in custody; therefore, a Pirtle

advisement was not required.       Accordingly, we affirm the trial court’s denial of

McLaughlin’s motion to suppress.

                             Facts and Procedural History

       Around 10:00 p.m. on July 12, 2012, Indianapolis Metropolitan Police Department

Officer James Gillespie was driving northbound on Binford Boulevard en route to a call

when he observed a black SUV driving “erratically” in the left lane in front of him. Tr. p.


                                             2
7. The SUV drifted into the right lane, almost striking another car, then returned to the left

lane. Id. at 7, 17.

       Believing the driver was “distracted or impaired,” Officer Gillespie “preempted”

the call he was on and pulled over the SUV. Id. at 7. The SUV was driven by McLaughlin

and had no passengers. Officer Gillespie asked McLaughlin for his license and registration.

McLaughlin was nervous and fidgety, spoke rapidly, had bloodshot eyes, and was sweating

profusely. Id. at 7, 21-22. When Officer Gillespie asked McLaughlin if he was okay,

McLaughlin responded that the air conditioner in his SUV was broken, but he was fine. Id.

at 8. Officer Gillespie returned to his car to perform a records check and determined that

McLaughlin was a “valid driver.” Id. Officer Gillespie walked back to McLaughlin’s SUV

and asked if he could call medics to come and check him because the officer was concerned

for his welfare. Id. McLaughlin, who was speaking clearly and appeared to be of sound

mind, said no because he was fine. Id. at 8, 24. Officer Gillespie then suggested that

McLaughlin drive his SUV to a parking lot and have someone pick him up; McLaughlin

declined this suggestion, too.     Id. at 8.   After returning McLaughlin’s license and

registration, Officer Gillespie asked McLaughlin if there was anything in his SUV that he

needed to know about, such as guns, drugs, weapons of mass destruction, or “anything like

that.” Id. at 8-9. McLaughlin said no. Officer Gillespie then asked McLaughlin if he could

“check real quick.” Id. at 9. McLaughlin said that “would be fine.” Id.

       McLaughlin, who was still sweating, stepped outside his SUV. Id. Officer Gillespie

conducted a patdown of McLaughlin to make sure he did not have any weapons on him.

Id. at 9-10. Officer Gillespie looked into the SUV and, on the front passenger seat, saw a


                                               3
Jolly Rancher box with several small pieces of aluminum foil. Id. at 10. According to

Officer Gillespie, this was indicative of narcotics. Id. Officer Gillespie opened up one of

the pieces of foil and observed a yellow-white powder, which he suspected to be an opiate.

Id. Officer Gillespie then asked another officer, who had since arrived on the scene, to

arrest McLaughlin and Mirandize him. Id.

       Officer Gillespie showed McLaughlin the Jolly Rancher box and asked him what

was inside; McLaughlin responded that it was a mixture of morphine and something else.

Id. at 12. Officer Gillespie performed a horizontal gaze nystagmus, which McLaughlin

passed. Id. at 22-23. Officer Gillespie continued the search and found a backpack in the

backseat of the car. The backpack contained several syringes, a spoon with burn marks

and drug residue, and cigarettes with the cotton removed, all of which indicated drug use

to Office Gillespie. Id. at 12. Because McLaughlin’s condition later worsened, he was

taken to Wishard Hospital. Id. at 23.

       The State charged McLaughlin with Class D felony possession of a narcotic drug

(heroin) and Class A misdemeanor possession of paraphernalia. McLaughlin filed a

motion to suppress the evidence found during the traffic stop pursuant to both the Indiana

and United States Constitutions. Appellant’s App. p. 5-6. At the motion-to-suppress

hearing, Officer Gillespie testified as follows:

       [McLaughlin] declined medical attention. So he . . . said he was fine, and I
       can’t force him to . . . seek medical assistance.

                                          *****

       If he would not have consented to the search, he would have been free to
       leave.


                                              4
                                          *****

       He had an open laptop, several electronic devices as well. I don’t know if he
       was playing on those things before I stopped him or not. I didn’t know if he
       was distracted. And again, he was – he wasn’t stumbling over his words. No
       slurred speech or anything like that. He was of sound mind and speaking to
       me just fine. And so I felt comfortable with letting him go ahead and find a
       parking lot.

Tr. p. 24. The trial court ruled that the search was “consensual” and that a Pirtle advisement

did not need to be given because McLaughlin “was not under arrest at that point” and was

free to leave. Id. at 57-59. As the trial court explained, when Officer Gillespie completed

the traffic stop and returned McLaughlin’s license and registration, he made a “judgment

call” not to take McLaughlin into custody for a drug-related crime. Id. at 58. The trial

court, however, suppressed the incriminating statements McLaughlin made after Officer

Gillespie found the Jolly Rancher box and excluded the evidence found in the backpack.

Id. at 62-63.

       This discretionary interlocutory appeal pursuant to Indiana Appellate Rule 14(B)

now ensues.

                                 Discussion and Decision

       McLaughlin contends that the trial court erred in denying his motion to suppress the

evidence found during the traffic stop. We review the denial of a motion to suppress in a

manner similar to reviewing the sufficiency of the evidence. Clark v. State, 994 N.E.2d

252, 259 (Ind. 2013). We consider only the evidence favorable to the trial court’s ruling,

alongside substantial uncontradicted evidence to the contrary, to decide if that evidence is

sufficient to support the denial. Id.



                                              5
       McLaughlin argues that his Pirtle rights were violated because he was asked to

consent to a search of his car “without being told he had a right to consult an attorney.”

Appellant’s Br. p. 6.

       There is no federal constitutional right to counsel before consenting to a search even

if the suspect is in custody. Clarke v. State, 868 N.E.2d 1114, 1119 (Ind. 2007) (citing

United States v. LaGrone, 43 F.3d 332, 337 (7th Cir. 1994)). However, Pirtle v. State, 263

Ind. 16, 323 N.E.2d 634 (1975), established that Article 1, Section 11 of the Indiana

Constitution requires that a person in custody explicitly waive the right to counsel before

giving a valid consent to a search.

       Here, McLaughlin was not advised of his right to counsel before Officer Gillespie

asked for consent to search his car. Therefore, if McLaughlin was in custody, his Pirtle

rights were violated, and the motion to suppress should have been granted.

       In determining whether a defendant was in custody when consent was requested,

courts consider all circumstances surrounding the encounter and apply an objective test,

asking whether a reasonable person under the same circumstances would believe that he

was under arrest or not free to resist the entreaties of the police. Meredith v. State, 906

N.E.2d 867, 873 (Ind. 2009). However, a suspect who has been stopped by police and

therefore has been “seized” for purposes of Article 1, Section 11 is not necessarily in

custody. Clarke, 868 N.E.2d at 1119 (citing Cooley v. State, 682 N.E.2d 1277, 1279 (Ind.

1997)); see also Meredith, 906 N.E.2d at 873 (“A person stopped by police, while ‘seized’

and momentarily not free to go, is ordinarily not considered in custody.”). Being stopped

for a traffic violation, asked to present a license, asked to perform a field sobriety test, and


                                               6
asked for consent to search a car is “nothing more than a conventional traffic stop” and

“cannot fairly be characterized as the functional equivalent of formal arrest.” Meredith,

906 N.E.2d at 874 (quotation omitted). Instead, something more is required to transform

a conventional traffic stop into a custodial situation. In Meredith, our Supreme Court

identified a non-exhaustive list of factors that help distinguish ordinary investigative

detentions from full-blown custodial interrogations: (1) whether the defendant was read his

Miranda rights, handcuffed, restrained in any way, or told that he was a suspect in a crime;

(2) how vigorous was the law enforcement interrogation; (3) 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 (4) the length of the

detention. Id. at 873-74.

       We find that the record here reveals a conventional traffic stop. Officer Gillespie

observed McLaughlin driving erratically and initiated a traffic stop. Officer Gillespie

asked McLaughlin for his license and registration and whether he was okay. After

returning his license and registration, Officer Gillespie asked McLaughlin for consent to

search his car. McLaughlin consented. This cannot fairly be characterized as the functional

equivalent of a formal arrest. See id. at 874 (“Here, the record reveals nothing more than

a conventional traffic stop. Viewed most favorably to the trial court’s decision, the record

shows only that Officer Lackey stopped the defendant for a traffic infraction; asked the

defendant for his license; based on his perception of the smell of alcohol and the

defendant’s red eyes and nervousness, asked the defendant to perform a sobriety test; and

then asked for consent to search the vehicle. Absent anything in the record pointing the


                                             7
other way, ‘[t]reatment of this sort cannot fairly be characterized as the functional

equivalent of formal arrest.’” (citations omitted) (quotation omitted)).

       In addition, none of the factors listed in Meredith were present when Officer

Gillespie asked McLaughlin for consent to search his car. That is, McLaughlin was not

read his Miranda rights, handcuffed, or restrained in any way. Officer Gillespie did not

inform McLaughlin that he was a suspect in a crime, interrogate him, suggest that he should

cooperate, or imply that he was not free to go about his business. Finally, McLaughlin was

not detained for any significant amount of time. The facts here are distinguishable from

those cases where the defendant was found to be in custody. See, e.g., Crocker v. State,

989 N.E.2d 812 (Ind. Ct. App. 2013) (finding driver in custody when officer put him in

police vehicle and questioned him there after officer noticed that driver’s eyes were

bloodshot and glassy, he was nervous, the rental car he was driving was in someone else’s

name, and his hands were shaking when he produced his driver’s license), trans. denied;

Friend v. State, 858 N.E.2d 646, 651 (Ind. Ct. App. 2006) (“Without question, a reasonable

innocent person in Friend’s position would not believe that he was free to leave or to resist

the entreaties of the police. The State points out that Trooper Rowan told Friend that he

was not under arrest. However, when the officer asked Friend for consent to search his

vehicle, Friend had already been patted down for weapons, detained roughly forty-five

minutes, and told repeatedly to stay in the patrol car. Finally, Friend was handcuffed but

not Mirandized. Friend was clearly ‘in custody’ when asked to consent to the search and

was not informed of his right to counsel before his consent was obtained.”); Sellmer v.

State, 842 N.E.2d 358 (Ind. 2006) (finding driver in custody where officer asked for her


                                             8
consent to search three to five times, asked incriminating questions, told driver it was in

her best interest to cooperate, and did not answer truthfully when driver asked the officer

what her rights were); Conwell v. State, 714 N.E.2d 764 (Ind. Ct. App. 1999) (finding

driver in custody when the officer immediately ordered driver out of car, handcuffed him,

and placed him in a choke hold). Because McLaughlin was not in custody, his Pirtle rights

did not attach.

      Nevertheless, McLaughlin makes a unique argument. He claims that because he

displayed “glaring signs of intoxication and heroin use,” he should have been detained from

the outset of the traffic stop and was therefore effectively in custody when he was asked

for consent to search. Appellant’s Br. p. 7-13. However, McLaughlin’s subjective beliefs

are not controlling because the test is an objective one. McLaughlin cannot retroactively

and unilaterally place himself into custody.               McLaughlin’s argument amounts to a

formulistic approach that when a person drives erratically, is nervous and fidgety, has

bloodshot eyes, and is sweating, that person must be placed into custody. But that is not

the law. Officer Gillespie made a reasonable determination, based on a number of factors,

not to take McLaughlin into custody when he returned McLaughlin’s license and

registration. Because McLaughlin was not in custody, no Pirtle advisement was necessary.

Accordingly, the trial court did not err in denying McLaughlin’s motion to suppress.1


        1
          McLaughlin also argues that his Fourth Amendment rights were violated. One well-recognized
exception to the Fourth Amendment’s warrant requirement is a voluntary and knowing consent to search.
Crocker, 989 N.E.2d at 820. When the State seeks to rely upon consent to justify a warrantless search, it
has the burden of proving that the consent was, in fact, freely and voluntarily given. Id. The voluntariness
of a consent to search is a question of fact to be determined from the totality of the circumstances. Id.
McLaughlin notes that “where there is coercion there can be no consent.” Appellant’s Br. p. 16.
McLaughlin, however, makes no argument that he was coerced into consenting to a search of his car.
Moreover, our analysis above shows otherwise. There is no Fourth Amendment violation.

                                                     9
      Affirmed.

RILEY, J., and MAY, J., concur.




                                  10
