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,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

MICHELLE F. KRAUS                                  GREGORY F. ZOELLER
Fort Wayne, Indiana                                Attorney General of Indiana

                                                   KARL M. SCHARNBERG
                                                   Deputy Attorney General

                                                                                 FILED
                                                   Indianapolis, Indiana

                                                                             Nov 05 2012, 9:50 am

                               IN THE                                                CLERK
                                                                                   of the supreme court,

                     COURT OF APPEALS OF INDIANA                                   court of appeals and
                                                                                          tax court




PATRICK FLUKER,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 02A03-1203-CR-137
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable John F. Surbeck, Jr., Judge
                              Cause No. 02D06-1009-MR-10



                                        November 5, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Patrick Fluker (“Fluker”) was convicted after a jury trial of murder,1 a felony,

enhanced due to the use of a firearm,2 and receiving stolen auto parts3 as a Class D felony.

He appeals, raising the following restated issues:

       I.        Whether the trial court abused its discretion when it admitted
                 recorded statements made by Fluker to the police because he
                 contends that they were made in violation of his Miranda4 rights;
                 and

       II.       Whether the trial court abused its discretion when it admitted
                 evidence taken from Fluker’s pockets because he claims the
                 evidence was seized after an illegal search.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       Early on the morning of September 3, 2010, police received a 911 call reporting

shots fired near the intersection of Broadway and Taylor Streets in Fort Wayne, Indiana.

The caller reported that he heard two shots, followed by a pause, and then he heard an

additional five or six shots. The caller lived near the parking lot for a General Electric

plant, and when he went outside to investigate the sounds, he saw a dark-colored sedan

parked in the empty lot. The caller then observed a black man wearing dark clothing,

running from the tree line next to the parking lot, and getting into the car parked in the

lot. The man attempted to exit the parking lot onto Taylor Street, but could not do so

because of the fence around the parking lot. He then drove the car towards the gate to the

       1
           See Ind. Code § 35-42-1-1.
       2
           See Ind. Code § 35-50-2-11.
       3
           See Ind. Code § 35-43-4-2.5(c).
       4
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                                      2
plant, where he exited the car and ran away on foot into a park next to the parking lot.

The park was between the parking lot and Broadway Street. The caller lost sight of the

man for a minute, but the man returned to the car, was inside for a minute or so, and then

exited again. The man fled on foot through the park toward Broadway Street.

       Fort Wayne Police Officer Benjamin MacDonald (“Officer MacDonald”) heard

the dispatch regarding the 911 call at approximately 4:19 a.m. and responded to the area.

He was driving southbound on Broadway Street when he saw a man matching the caller’s

description walk out from behind the General Electric building near the park. The man,

later identified as Fluker, began to walk northbound on Broadway Street. Because the

nature of the 911 call dealt with shots fired and because Officer MacDonald was in a poor

tactical position with regard to Fluker, the officer drove past Fluker, but kept sight of him

in the rearview mirror. As soon as Officer MacDonald was able to turn out all the

running lights on his car, he turned around to follow Fluker.

       When Fluker passed under a bridge, Officer MacDonald briefly lost sight of him.

When the officer emerged from under the bridge, he drove his car to an alleyway located

up the embankment on the other side of the bridge. He then saw Fluker urinating on the

side of the building. Officer MacDonald ordered Fluker to place his hands on the wall

and placed him in handcuffs. The officer noticed that Fluker was sweating profusely.

For his own safety, Officer MacDonald conducted a patdown search and found what he

believed to be a knife in one of Fluker’s pockets. When he pulled out the knife, he also

located some papers, including a Walmart receipt, which he did not examine. Some of

the papers contained the name Thomas Renier. Officer MacDonald asked Fluker whose

                                             3
name was on the papers, and Fluker responded that he had found the papers under the

bridge. Officer MacDonald returned the papers to Fluker’s pocket, but kept the knife for

safety reasons.

       Fluker was placed into the back seat of Officer MacDonald’s patrol car, which was

equipped with a video and audio recorder. Officer MacDonald activated the recording

equipment and read Fluker his Miranda rights. While Officer MacDonald was in the

process of reading the Miranda warnings, immediately after Fluker had been warned that

he had the right to remain silent, Fluker stated that he understood. Officer MacDonald

suspected that Fluker had taken the papers in his pockets from the car that had been

mentioned in the 911 call, so he drove to the General Electric parking lot. When they

arrived at the parking lot, Fluker admitted that he had the keys to the car. He was

wearing the key on a lanyard around his neck. Officer MacDonald used the keys to

verify that they belonged to the car by opening the door and starting the car. The keys

belonged to the car, which was a dark-colored four-door Cadillac that had been left in the

General Electric parking lot.

       Other officers responded to the area, including Fort Wayne Police Officer Keith

Wallace (“Officer Wallace”). Officer Wallace confirmed through dispatch that the car, a

2000 Cadillac Seville, belonging to Thomas Renier, had been reported stolen. Fluker’s

belongings, including his high school diploma, were found inside of the car. Several

items of women’s clothing, including a shirt, skort, underwear, and flip flops, were also

found in the backseat of the car. Officer Wallace spoke to the 911 caller, who pointed

out the area where Fluker had originally parked the car and where he had observed Fluker

                                            4
run out of the tree line. Officer Wallace then walked the area and found a woman’s bra

in the weeds. He continued into the woods and observed a puddle of blood and then a

larger pool of blood that was “still bubbled” and contained “pink frothy tissue” in it. Tr.

at 198. Officer Wallace went further and saw a foot and a leg; as he moved closer, he

saw the whole body of a female, later identified as Tiffany Mendez (“Mendez”). She was

completely nude and face down. When the officer checked for a pulse, he found none.

      Fort Wayne Police Officer Michael Burris (“Officer Burris”) returned to the

location where Officer MacDonald had apprehended Fluker. In a search of the area,

Officer Burris discovered a handgun and box of nine-millimeter ammunition on the roof

of the building on which Fluker had been urinating. The handgun was swabbed for DNA

and two profiles were recovered -- one for Mendez and one that could not exclude Fluker.

Mendez had been shot between the eyes from a distance of more than eighteen inches.

During the autopsy, Fluker’s DNA was discovered on Mendez’s body.

      Police later learned that a day or two before the murder, Fluker had gone to

Walmart with his cousin. One of the purchases that his cousin made that day was a box

of nine-millimeter bullets she had purchased for her boyfriend. Fluker carried the bag

containing the bullets to the car, and when his cousin returned home, she realized that the

box of ammunition she had purchased was missing. Among the papers found in Fluker’s

pocket on the night of the murder was a receipt from Walmart from September 2, 2010

for the purchase of a box of ammunition.

      The State charged Fluker with murder with an enhancement for using a firearm in

the commission of the crime and receiving stolen auto parts as a Class D felony. On

                                            5
August 9, 2011, Fluker filed a motion to suppress statements Fluker made to Officer

MacDonald. A hearing was held, and the trial court denied the motion. A jury trial was

conducted from February 7 through February 9, 2012. At the conclusion of the trial, the

jury found Fluker guilty as charged. He was sentenced to fifty-five years for his murder

conviction enhanced by five years for the use of a firearm and one-and-one-half years for

his conviction for receiving stolen auto parts, to be served consecutively for an aggregate

sentence of sixty-one-and-one-half years executed. Fluker now appeals.

                                DISCUSSION AND DECISION

       The admission of evidence is within the sound discretion of the trial court, and we

will reverse only on a showing of abuse of discretion. Boggs v. State, 928 N.E.2d 855,

862 (Ind. Ct. App. 2010) (citing McClendon v. State, 910 N.E.2d 826, 832 (Ind. Ct. App.

2009), trans. denied), trans. denied. An abuse of discretion occurs if the decision is

clearly against the logic and effect of the facts and circumstances before the trial court.

Id. Even if the trial court’s decision was an abuse of discretion, we will not reverse if the

admission constituted harmless error. Taylor v. State, 904 N.E.2d 259, 261–62 (Ind. Ct.

App. 2009), trans. denied.

                                  I. Admission of Statements

       Although Fluker phrases his argument as whether the trial court erred when it

denied his motion to suppress, since he did not file an interlocutory appeal and this appeal

follows a completed trial, the issue is more appropriately framed as whether the trial

court abused its discretion by admitting the evidence at trial. Lanham v. State, 937

N.E.2d 419, 421-22 (Ind. Ct. App. 2010). Fluker contends that the trial court abused its

                                             6
discretion when it allowed the statements he made to Officer MacDonald to be admitted

into evidence. Fluker specifically claims that these statements were made in violation of

his Miranda rights because he did not make a knowing and voluntary waiver of his rights.

He asserts that he did not indicate that he understood all of his rights and that there was

no indication that he actually waived his rights.

       We have held that when an accused is subjected to custodial interrogation, the

State may not use statements stemming from the interrogation unless it demonstrates the

use of procedural safeguards effective to secure the accused’s privilege against self-

incrimination. Payne v. State, 854 N.E.2d 7, 13 (Ind. Ct. App. 2006). The Miranda

warnings apply only to custodial interrogation because they are meant to overcome the

inherently coercive and police dominated atmosphere of custodial interrogation. Id. To

be in custody for purposes of Miranda, the defendant need not be placed under formal

arrest. King v. State, 844 N.E.2d 92, 96 (Ind. Ct. App. 2005). Rather, the custody

determination turns upon whether the individual’s freedom has been deprived in a

significant way or if a reasonable person in his position would believe he is not free to

leave. Id.

       A waiver of one’s Miranda rights occurs when the defendant, after being advised

of those rights and acknowledging that he understands them, proceeds to make a

statement without taking advantage of those rights. Johnson v. State, 829 N.E.2d 44, 50

(Ind. Ct. App. 2005) (citing Ringo v. State, 736 N.E.2d 1209, 1211–12 (Ind. 2000)),

trans. denied. For a statement to be admissible, the State must show that a defendant’s

waiver was knowing and voluntary. Id. (citing Deckard v. State, 670 N.E.2d 1, 6 (Ind.

                                             7
1996)). To determine whether a valid waiver was made, courts look to the totality of the

circumstances. Id.

       Here, Fluker was taken into custody after Officer MacDonald discovered him

urinating on the exterior wall of a building. When Fluker was placed inside of Officer

MacDonald’s patrol car, the officer told Fluker that he was not under arrest but that he

was in custody. Officer MacDonald then read Fluker his Miranda rights. During the

reading of his Miranda rights, specifically after Fluker was told that he had the right to

remain silent, Fluker responded by saying, “I understand, anything I say . . . .” State’s

Ex. 13. Officer MacDonald did not specifically ask Fluker if he understood the rest of his

rights or if he wished to waive those rights.

       After Officer MacDonald finished his reading of Fluker’s rights, the following

exchange took place:

       Officer:      Now like I said you’re not under arrest right now, but this is
                     what I think happened. You don’t have to say anything. But,
                     last time I dealt with people I stopped them when we get calls
                     and they’re running from cars and they got stuff in their
                     pockets that look like it came straight out of a glove
                     compartment, you know what that tells me? That I probably
                     need to go look over at this car over here and looks like it
                     probably got broken into. Right?

       Fluker:       No.

       Officer:      I’m not right?

       Fluker:       No sir. Well, I’m gonna tell you what I did. Honest why I’m
                     sweating. It’s because I heard some gunshots and I started
                     running.




                                                8
Id. By answering Officer MacDonald, Fluker demonstrated his desire to waive his right

to remain silent, which was the specific right that he had explicitly acknowledged that he

understood. Additionally, Fluker’s statement that he understood his rights, even though it

did not occur at the end of the reading of the rights, indicated his understanding of his

rights. Under the totality of the circumstances, we conclude that the evidence showed

that Fluker knowingly and voluntarily waived his Miranda rights.

       Fluker’s reliance on Johnson v. State is misplaced as that case is distinguishable

from the present case. There, the detective read the defendant his rights, but failed to

obtain a signature on the waiver form or inquire as to whether the defendant understood

his rights. 829 N.E.2d at 50. The defendant also never expressed any understanding of

his rights prior to making a statement regarding his involvement in the crime at issue. Id.

The State in that case relied upon only the defendant’s silence and the fact that he made a

statement when faced with the evidence against him to show that the defendant had

waived his rights. The present case is distinguishable because, here, Fluker expressed his

understanding of his right to remain silent and then proceeded to break that silence by

relaying his version of events. We therefore conclude that the trial court did not abuse its

discretion in admitting the statements made by Fluker to Officer MacDonald.

                    II. Admission of Evidence Found in Fluker’s Pockets

       Fluker argues that the trial court abused its discretion in allowing the papers found

in his pockets to be admitted into evidence. He contends that this evidence was seized in




                                             9
violation of the Fourth Amendment to the United States Constitution5 because it was

discovered as the result of an illegal search. He asserts that the papers were found when

Officer MacDonald performed a patdown search for weapons; as the papers were clearly

not weapons, Fluker argues that Officer Macdonald’s removal of the papers exceeded the

protective scope of the patdown search. He therefore alleges that the admission of the

papers into evidence was an abuse of discretion.

       The Fourth Amendment protects persons from unreasonable search and seizure,

and this protection has been extended to the states through the Fourteenth Amendment.

U.S. Const. amend. IV; Boggs, 928 N.E.2d at 863. Generally, a search warrant is a

prerequisite to a constitutionally proper search and seizure. Id. (citing Halsema v. State,

823 N.E.2d 668, 676 (Ind. 2005)). When a search or seizure is conducted without a

warrant, the State bears the burden of proving that an exception to the warrant

requirement existed at the time of the search or seizure. Id.

       The United States Supreme Court established one such exception in Terry v. Ohio,

392 U.S. 1 (1968), which held that a police officer may briefly detain a person for

investigatory purposes without a warrant or probable cause, if, based on specific and

articulable facts together with reasonable inferences from those facts, an ordinarily

prudent person would reasonably suspect that criminal activity was afoot. Howard v.

State, 862 N.E.2d 1208, 1210 (Ind. Ct. App. 2007). Reasonable suspicion is determined

on a case-by-case basis by looking at the totality of the circumstances. Id. In addition to
       5
          Fluker also mentions Article I, section 11 of the Indiana Constitution, but does not develop a
separate argument under the Indiana Constitution. Therefore, any argument under the Indiana
Constitution has been waived. Ind. Appellate Rule 46(A)(8)(a); Smith v. State, 822 N.E.2d 193, 203 (Ind.
Ct. App. 2005), trans. denied.

                                                  10
detainment, Terry permits a police officer to conduct a limited search of the individual’s

outer clothing for weapons if the officer reasonably believes the individual is armed and

dangerous. Id. The seizure of contraband detected during the lawful execution of a Terry

search is permissible under the “plain feel doctrine.” Barfield v. State, 776 N.E.2d 404,

407 (Ind. Ct. App. 2002). “If during the lawful patdown of ‘the suspect’s outer clothing,’

the officer ‘feels an object whose contour or mass makes its identity’ as contraband

‘immediately apparent’ to that officer, a warrantless seizure may be executed.” Id.

       In the present case, Officer MacDonald was responding to a dispatch regarding

shots being fired in the area and noticed Fluker, who matched the description of a man

seen fleeing the area. When Officer MacDonald approached Fluker, Fluker was urinating

on the side of a building. Due to the nature of the 911 call, Officer MacDonald decided

to perform a patdown search of Fluker for officer safety to determine if Fluker had any

weapons. During the patdown, Officer MacDonald discovered what he believed to be a

knife. When he pulled out the knife, he also located some papers. Officer MacDonald

noticed a person’s name on some of the papers and asked Fluker about it; Fluker claimed

that he had found the papers under the bridge. Officer MacDonald also noticed that one

of the papers was a Walmart receipt, but did not examine it. The officer kept the knife

for safety reasons, but returned all of the papers to Fluker’s pocket.

       Later, after it was determined that the car that Fluker had been driving was

reported stolen and that there was a dead body in the park near where the car was located,

Fluker was taken to the Detective’s Bureau for questioning. Fort Wayne Police Officer

Justin Holmes (“Officer Holmes”) removed Fluker from Officer MacDonald’s patrol car

                                             11
and placed Fluker inside his own vehicle to transport Fluker for questioning. Before

placing Fluker inside the vehicle, Officer Holmes conducted a search of Fluker. During

this search, he discovered the papers that Officer MacDonald had seen earlier, a couple of

condoms and a do-rag. Officer Holmes placed the items inside of a plastic bag and

secured them in the front seat of his vehicle. He turned them over to a detective when he

arrived at the Detective’s Bureau.

      “‘So long as probable cause exists to make an arrest, the fact that a suspect was

not formally placed under arrest at the time of the search incident thereto will not

invalidate the search.’” Sebastian v. State, 726 N.E.2d 827, 830 (Ind. Ct. App. 2000)

(quoting Santana v. State, 679 N.E.2d 1355, 1360 (Ind. Ct. App. 1997)), trans. denied. In

addition, a police officer’s subjective belief concerning whether he has probable cause to

arrest a defendant has no legal effect. Id. (citing Stevens v. State, 701 N.E.2d 277, 280

(Ind. Ct. App. 1998). Probable cause to arrest exists where the officer has knowledge of

facts and circumstances that would warrant a man of reasonable caution to believe that a

suspect has committed the criminal act in question. Id. Under the search-incident-to-

arrest exception to the warrant requirement, a police officer may conduct a search of the

defendant’s person and the area within his control. Id.

      When Officer MacDonald approached Fluker, he observed Fluker urinating in

public on the side of a building. Therefore, although Fluker was told he was not under

arrest, Officer MacDonald had probable cause to arrest Fluker for public indecency at the

time he conducted the patdown search and removed the papers from Fluker’s pockets.

Because probable cause existed to arrest Fluker for public indecency when Officer

                                            12
MacDonald saw him urinating on the wall, the initial search was proper as incident to

Fluker’s arrest.

       Even if the initial search was not proper, under the Fourth Amendment,6 the

inevitable discovery exception to the exclusionary rule “permits the introduction of

evidence that eventually would have been located had there been no error, for in that

instance ‘there is no nexus sufficient to provide a taint.’” Shultz v. State, 742 N.E.2d 961,

965 (Ind. Ct. App. 2001) (quoting Banks v. State, 681 N.E.2d 235, 239 (Ind. Ct. App.

1997) (quoting Nix v. Williams, 467 U.S. 431, 438 (1984))), trans. denied. Here, the

papers, which were initially discovered when Officer MacDonald removed them during

the patdown search, were returned to Fluker and later seized by Officer Holmes when

Fluker was taken to the Detective’s Bureau for questioning after the car was determined

to be stolen and Mendez’s body had been discovered. Therefore, at the time the papers

were actually seized, the police possessed probable cause to arrest Fluker for a variety of

criminal offenses. The evidence was properly seized, and the trial court did not abuse its

discretion in admitting the evidence at trial.

       Affirmed.

NAJAM, J., and MAY, J., concur.




       6
          The inevitable discovery exception has not been adopted as a matter of Indiana constitutional
law. Ammons v. State, 770 N.E.2d 927, 935 (Ind. Ct. App. 2002) (citing Shultz v. State, 742 N.E.2d 961,
966 n.1 (Ind. Ct. App. 2001), trans. denied), trans. denied. The Indiana Supreme Court has previously
held that “our state constitution mandates that the evidence found as a result of [an unconstitutional]
search be suppressed.” Id. However, as Fluker has waived any argument under the Indiana Constitution,
the inevitable discovery exception is applicable under our Fourth Amendment analysis.


                                                  13
