                                                                                FILED
                                                                            Apr 26 2018, 8:37 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ruth Johnson                                              Curtis T. Hill, Jr.
Deborah Markisohn                                         Attorney General of Indiana
Rory Gallagher                                            Caryn N. Szyper
Marion County Public Defender                             Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Scott Randall,                                            April 26, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1708-CR-1779
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Clark Rogers,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G25-1607-F6-29473




Robb, Judge.




Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018                           Page 1 of 22
                                Case Summary and Issues
[1]   Scott Randall brings this interlocutory appeal from the trial court’s denial of his

      motion to suppress evidence resulting from a police officer’s observations while

      conducting a welfare check. The trial court concluded the welfare check was

      supported by the community caretaking function. Randall now appeals

      presenting three issues which we restate as: (1) whether the trial court

      erroneously applied the community caretaking function; (2) whether Randall’s

      seizure was reasonable under the Fourth Amendment to the United States

      Constitution and Article 1, Section 11, of the Indiana Constitution; and (3)

      whether Randall’s statements were made in violation of Miranda. Concluding

      the trial court erroneously applied the community caretaking function but that

      Randall’s seizure was reasonable under both the Fourth Amendment and

      Article 1, Section 11 pursuant to the emergency aid doctrine, and that Randall’s

      statements were not made in violation of Miranda, we affirm.



                            Facts and Procedural History                               1




[2]   Around 9:00 p.m. on July 29, 2016, Deputy Ashley Rose, a special deputy of

      the Marion County Sheriff’s Office performing off-duty security work for St.

      Vincent’s Hospital, was patrolling the same-day surgery parking lot when he




      1
        We heard oral argument at DePauw University in Greencastle, Indiana, on April 9, 2018. We thank the
      faculty—especially Professor Bruce Stinebrickner—staff, and students of DePauw University for their
      generous hospitality and commend counsel for their skilled and informative oral advocacy.

      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018                   Page 2 of 22
      observed a man sitting in the driver’s seat of a black Ford Focus with the

      driver’s door open and ignition off. The man, later identified as Randall,

      “appeared to be leaning forward over the steering wheel” or “slumped over.”

      Transcript, Volume 1 at 10-11.


[3]   Deputy Rose decided to conduct a “welfare check” 2 and proceeded to pull

      behind Randall’s car while activating his “overhead takedown lights.” 3 Id. at

      10. As soon as Deputy Rose put his car in park, “Randall abruptly exited his

      vehicle and started walking toward my vehicle at a fast pace.” Id. at 10.

      Deputy Rose ordered Randall back to his car and Randall obliged, returning to

      the driver’s seat of his car. Deputy Rose then approached Randall’s car and

      began speaking with him while the driver’s door was still open. During this

      time, Deputy Rose observed that Randall was speaking quickly, “sweating very

      intensely,” and that he began “reaching around the car very nervously.” Id. at

      12. Deputy Rose also observed a “folded square of aluminum foil” on the

      dashboard of the car, which he believed to be consistent with narcotic use. Id.


[4]   Suspecting drugs were in the car, Deputy Rose attempted to “find out what else

      would be in the vehicle that would be paraphernalia or narcotics related.” Id. at

      14. Specifically, Deputy Rose told Randall that he “had experience and I asked

      him what else in the vehicle he would not want a canine officer to find.” Id. at




      2
          Deputy Rose later testified “[w]e’ve had people die in that lot . . . .” Id. at 17.
      3
       “Overhead take down lights” are white lights for “scene lighting[,]” not flashing red-and-blue lights. Id. at
      18.

      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018                          Page 3 of 22
      17. Randall admitted that he had a marijuana pipe, and Deputy Rose then

      instructed him to exit his vehicle. After Randall refused and began raising his

      voice, another officer who had arrived on scene activated his taser and pointed

      it at Randall while Deputy Rose placed Randall’s left wrist in a wrist lock.


              [Randall] began crying immediately and stated it’s in the door,
              it’s in the door. And so I had to, you know, ask him what are
              you talking about. And he said that there was meth in the door.
              And I looked to the left and clearly in plain view in the door in
              the pocket I could see a clear plastic baggie which had a white
              powdery substance in it.


      Id. at 14-15. Randall was detained, placed in handcuffs, and seated nearby

      while a search of the vehicle revealed methamphetamine and two marijuana

      pipes. Because Deputy Rose had no further questions to ask Randall once he

      was in custody, he “did not feel Miranda was required” and therefore, Randall

      “was not read Miranda that night.” Id. at 16.


[5]   Randall was subsequently charged with possession of methamphetamine, a

      Level 6 felony, and two counts of possession of paraphernalia, both Class C

      misdemeanors. Randall moved to suppress the evidence against him and the

      trial court denied his motion after a hearing, concluding:


              In this case, Officer Rose approached the Defendant for the
              purpose of a welfare check, under his community caretaking
              function, which allows for a seizure of the Defendant as long as it
              reasonably takes to assess his wellbeing (as well as to provide aid
              if necessary). Based on Officer Rose's testimony, he did not have
              his concern for the Defendant's wellbeing alleviated by the
              Defendant exiting his vehicle, ordering the Defendant to return

      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 4 of 22
              to his vehicle for officer safety and then approaching - arguably a
              seizure. Additionally, there are no facts alleged to suggest that
              Officer Rose had any reasonable suspicion of a crime - he stated
              that he saw a man slumped over his steering wheel and excitedly
              exit his vehicle. Even if Officer Rose might have had a slight
              suspicion that the Defendant had taken an illegal substance to
              cause his incapacitated state, the objective reasoning of checking
              on someone who clearly looks distressed, as well as the fact that
              someone in an incapacitated state in a hospital parking lot could
              have easily been caused by numerous other reasons, more than
              outweighs such suspicion. More importantly, public need and
              interest (i.e., we want Officer Rose to check on the wellbeing of
              someone slumped over a steering wheel, and we do not want him
              to prejudge the situation because he sees the person simply exit
              his vehicle - assuming a person is fine seconds after being
              incapacitated and not possibly still suffering from the effects of
              whatever caused the incapacity could be tragic) significantly
              outweigh the minimal intrusion upon the privacy of the
              Defendant in this case (i.e., having to return to his vehicle and
              briefly talk with Officer Rose about his wellbeing).


              After reviewing the totality of the circumstances, balancing the
              interests, and determining reasonableness, the Court finds that
              Officer Rose acted reasonably and was justified in ordering the
              Defendant to return to his vehicle and approaching the vehicle to
              talk with the Defendant.


      Appellant’s Appendix Volume II at 52.


[6]   Randall filed a petition to certify the trial court’s order for interlocutory appeal

      and for a stay of the proceedings, which the trial court granted on July 11, 2017.

      This court accepted jurisdiction on September 18, 2017.




      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 5 of 22
                                 Discussion and Decision
                                      I. Standard of Review
[7]   We review a trial court’s ruling on a motion to suppress in a manner similar to

      other sufficiency matters. Taylor v. State, 69 N.E.3d 502, 505 (Ind. Ct. App.

      2017).


               The record must disclose substantial evidence of probative value
               supporting the trial court’s decision. We do not reweigh the
               evidence. We consider conflicting evidence most favorable to the
               trial court’s ruling, but unlike other sufficiency matters, we must
               also consider undisputed evidence favorable to the defendant.


      Id. (internal citations omitted). Where, as here, an appellant’s challenge to such

      a ruling is premised on a claimed constitutional violation, we review the issue

      de novo because it raises clear questions of law. Guilmette v. State, 14 N.E.3d

      38, 40-41 (Ind. 2014). We may affirm the trial court’s ruling if it is sustainable

      on any legal basis in the record, even though it was not the reason that the trial

      court enunciated. Scott v. State, 883 N.E.2d 147, 152 (Ind. Ct. App. 2008).


                                                 II. Seizure
[8]   The Fourth Amendment to the United States Constitution states that:


               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.

      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018    Page 6 of 22
       U.S. Const. amend IV.


[9]    “Accordingly, a warrantless search or seizure is per se unreasonable, and the

       State bears the burden to show that one of the well-delineated exceptions to the

       warrant requirement applies.” M.O. v. State, 63 N.E.3d 329, 331 (Ind. 2016)

       (quotations omitted). “[A] person is ‘seized’ . . . when, by means of physical

       force or a show of authority, his freedom of movement is restrained.” U.S. v.

       Mendenhall, 446 U.S. 544, 553 (1980). On appeal, the State concedes that

       Deputy Rose ordering Randall to return to his vehicle constituted a seizure.

       Brief of Appellee at 10. The trial court found the seizure reasonable pursuant to

       the community caretaking function and Randall now argues its application was

       erroneous. Although we agree that the community caretaking function was

       inapplicable on the facts presented, we nevertheless find Randall’s seizure

       permissible under the emergency aid doctrine.


                               A. Community Caretaking Function
[10]   Put simply, the community caretaking function is:


               a catchall term for the wide range of responsibilities that police
               officers must discharge aside from their criminal enforcement
               activities. Indeed, besides enforcing criminal laws, police aid
               those in distress, combat actual hazards, prevent potential
               hazards . . . and provide an infinite variety of services to preserve
               and protect community safety.


       Wilford v. State, 50 N.E.3d 371, 375 (Ind. 2016) (citations and quotations

       omitted).


       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 7 of 22
[11]   In its Findings of Fact, Conclusions of Law, and Order, the trial court relied

       primarily on our decision in McNeal v. State, 62 N.E.3d 1275 (Ind. Ct. App.

       2016), vacated in relevant part by McNeal v. State, 76 N.E.3d 136 (Ind. 2017).

       There, a panel of this court adopted a three-prong analysis “for evaluating

       claims of police community caretaking functions as set out by the Wisconsin

       Supreme Court in State v. Kramer, 315 Wis.3d 414, 759 N.W.2d 598, 605

       (2009).” McNeal, 62 N.E.3d at 1281. The trial court applied the Kramer three-

       prong analysis before concluding Deputy Rose’s actions were justified by the

       community caretaking function. Just a few weeks after the trial court’s order,

       however, our supreme court issued its opinion in McNeal v. State, which

       expressly vacated the Kramer analysis:


               [McNeal] asks this Court to vacate a portion of the Court of
               Appeals’ opinion discussing the community caretaking exception
               to the Fourth Amendment's warrant requirement.


               McNeal's request is well-taken. We now grant transfer, vacating
               the Court of Appeals’ discussion of the community caretaking
               function . . . .


       76 N.E.3d at 137.


[12]   Because our supreme court expressly vacated the Kramer analysis, Randall

       alleges the trial court’s legal basis for denying his motion to suppress “cannot be

       upheld.” Brief of Appellant at 13. We agree, and to the extent the trial court

       applied the community caretaking function, such application was erroneous.



       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 8 of 22
[13]   Our supreme court has only applied the community caretaking function as an

       exception to the warrant requirement in the limited context of inventory

       searches, and even then “only when the State meets a strict two-prong standard

       for proving the warrantless impoundment was reasonable.” M.O., 63 N.E.3d at

       332 n.2 (quotation omitted). However, as noted above, we may affirm the trial

       court’s ruling if it is sustainable on any legal basis in the record, even though it

       was not the reason that the trial court enunciated. Scott, 883 N.E.2d at 152.


                                       B. Emergency Aid Doctrine
                                            1. Fourth Amendment

[14]   Although the trial court erroneously applied the community caretaking

       function, its reasoning tracked another exception to the warrant requirement

       with a basis in the record—the emergency aid doctrine. The emergency aid

       doctrine is premised on the theory that police should be able to act without

       obtaining a warrant when they reasonably believe a person needs immediate aid

       or attention. Mincey v. Arizona, 437 U.S. 385, 392 (1978). “The need to protect

       or preserve life or avoid serious injury is justification for what would be

       otherwise illegal absent an exigency or emergency.” Id. (quotation omitted).

       Under the emergency aid doctrine, an officer may act without a warrant where

       the officer had “an objectively reasonable basis for believing that medical

       assistance was needed, or persons were in danger.” Michigan v. Fisher, 558 U.S.

       45, 49 (2009) (quotations omitted).




       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 9 of 22
[15]   Our supreme court recently explored the emergency aid doctrine through two

       cases decided the same day: M.O. v. State, and Cruz-Salazar v. State, 63 N.E.3d

       1055 (Ind. 2016). First, in M.O., the clerk of a gas station reported that a

       woman was “stuck underneath her vehicle in the parking lot.” 63 N.E.3d at

       330. By the time an officer arrived on scene, dispatch had advised the officer

       that the woman was leaving the gas station and the officer observed her vehicle

       leaving the parking lot. “[F]earing for her well-being[,]” the officer initiated a

       traffic stop and approached her vehicle “where he observed no signs of physical

       injury.” Id. at 330-31. The officer then engaged the defendant in conversation

       and she explained why she had been stuck underneath her vehicle, but during

       this conversation the officer observed signs of impairment and smelled the odor

       of alcohol coming from the vehicle. The defendant was arrested, charged with

       operating a vehicle while intoxicated, and later moved to suppress the evidence

       claiming the traffic stop was invalid under both the Fourth Amendment to the

       United States Constitution and Article 1, Section 11 of the Indiana

       Constitution.


[16]   On transfer,4 our supreme court turned to two cases that seemingly delineate the

       boundaries of Indiana’s recognized emergency aid doctrine: Bruce v. State, 268

       Ind. 180, 216, 375 N.E.2d 1042, 1062 (1978) (holding search of vehicle

       revealing a shotgun used in murder prosecution was permissible where officer




       4
        The trial court denied the defendant’s motion to suppress and the Court of Appeals reversed. M.O. v. State,
       54 N.E.3d 428, 439 (Ind. Ct. App. 2016).

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018                      Page 10 of 22
was responding to a report of an accident with injury) and Trotter v. State, 933

N.E.2d 572, 577 (Ind. Ct. App. 2010) (holding search was impermissible where

there was no evidence that the defendant was in need of emergency assistance

where police responded to gunshots on private property and were told a man

had gone inside to use the bathroom and the police entered the barn to find the

man). Applying the reasoning of the two cases to the facts before it, the M.O.

Court explained:


        Officer Arnold responded to a report that a woman was trapped
        under her car, which undoubtedly could give rise to a reasonable
        concern that emergency medical assistance was needed,
        prompting further investigation, as in both Bruce and Trotter.
        However, the actual facts he subsequently confronted did not
        objectively support that concern: Officer Arnold learned that
        M.O. had freed herself prior to his arrival at the gas station, M.O.
        operated her vehicle normally, and Officer Arnold witnessed no
        traffic infractions or criminal conduct. This is distinctly different
        from Bruce, where the responding officer came upon facts
        consistent with a continuing emergency, and thus the officer had
        “no reasonable alternative” but to conduct a warrantless search
        of the vehicle. Bruce, 268 Ind. at 216-17, 375 N.E.2d at 1062.
        Rather, as in Trotter, while the evidence Officer Arnold observed
        firsthand, when combined with the report, may have “indicat[ed]
        a possible unsafe situation, such evidence does not establish an
        exigency sufficient to justify [the] warrantless intrusion” of
        stopping M.O.’s car. Trotter, 933 N.E.2d at 580.


        We do not believe Officer Arnold’s assertion that he feared for
        M.O.’s medical state was merely a pretext to conduct an
        investigatory stop, but his subjective intent is not decisive: “[T]he
        test is objective, and the government must establish that the
        circumstances as they appear[ed] at the moment of [the stop]
        would lead a reasonable, experienced law enforcement officer to
Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 11 of 22
               believe that someone inside the [vehicle] required immediate
               assistance.” Trotter, 933 N.E.2d at 579. And in a close case on
               these unique facts, we err, if at all, on protecting the privacy
               rights of Hoosiers against intrusion by the State. Accordingly,
               we find that the State has failed to carry its burden of showing
               that an exception to the warrant requirement of the Fourth
               Amendment justified the stop.


       Id. at 333-34.


[17]   In Cruz-Salazar v. State, an officer responded to a report of a suspicious vehicle

       which had been parked in front of a residence for thirty minutes while still

       running. 63 N.E.3d at 1055. The officer found the vehicle as described and

       shined his spot light on the vehicle to find the defendant “sleeping or passed

       out.” Id. After the defendant failed to respond to knocks on the window, the

       officer opened the vehicle’s door and awoke the defendant by “shaking him a

       little.” Id. at 1056. The officer then immediately observed behavior consistent

       with intoxication and arrested the defendant for public intoxication. A

       subsequent search incident to arrest revealed cocaine on his person. The trial

       court denied the defendant’s motion to suppress and he was convicted

       following a bench trial. On transfer, our supreme court cited its discussion of

       the emergency aid exception in M.O., and proceeded directly to its application:


               Police received a report of a stationary vehicle that had been
               running for 30 minutes, in the early hours of a cold December
               morning. This alone is sufficiently unusual to merit further
               investigation, as it could be an indicator of distress. Police
               arrived on scene to find the situation as reported, and indeed
               worse: Cruz–Salazar was at the wheel of the vehicle, and was not
               responsive when Officer Ayler both shined his flashlight through
       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 12 of 22
               the windows or when he tapped on the window. At this point,
               the officer had an objectively reasonable basis to open the door
               and check on Cruz–Salazar’s well-being. Accordingly, we find
               the warrantless entry into Cruz-Salazar’s vehicle permissible
               under the Fourth Amendment to the Federal Constitution and
               Article 1, Section 11 of the Indiana Constitution.


       Id. at 1056-57 (citation omitted).


[18]   Returning to the facts presented here, while patrolling a hospital parking lot

       where he testified that people have died, Deputy Rose observed a man

       appearing to be “slumped over” the steering wheel of his car with his driver’s

       door open. Tr., Vol. 1 at 11. We believe these observations “could give rise to

       a reasonable concern that emergency medical assistance was needed, prompting

       further investigation . . . .” M.O., 63 N.E.3d at 333. Therefore, we conclude

       that Deputy Rose had an objectively reasonable basis to believe that Randall

       required medical assistance when he initially observed his vehicle.


[19]   As Deputy Rose activated his overhead white lights and pulled behind Randall

       to conduct a welfare check, Randall “abruptly exited his vehicle and started

       walking toward [Deputy Rose’s] vehicle at a fast pace.” Tr., Vol. 1 at 10.

       Deputy Rose then ordered Randall to return to his vehicle and he obliged, but

       Randall argues that at this point in the encounter, although the facts may have

       initially supported application of the emergency aid exception, “any such

       concern dissipated once [he] promptly became alert and got out of his car

       without incident.” Br. of Appellant at 16. In so arguing, Randall relies on the

       facts of M.O., where, as discussed above, our supreme court concluded the facts

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 13 of 22
       did not support an exigency sufficient to justify the warrantless intrusion of

       stopping M.O.’s car. M.O., 63 N.E.3d at 333. Concluding the facts that

       Deputy Rose confronted objectively supported his concern and constituted an

       exigency sufficient to justify Randall’s brief seizure, we find Cruz-Salazar

       controlling and M.O. distinguishable.


[20]   We disagree that Randall’s behavior immediately dispelled Deputy Rose’s

       concern. The trial court found that “[b]ased on Officer Rose’s testimony, he

       did not have his concern for [Randall’s] wellbeing alleviated by [Randall]

       exiting his vehicle . . . .” Appellant’s App., Vol. II at 52. On appeal, Randall

       alleges that the trial court’s finding is unsupported by the record because “there

       is no testimony that Deputy Rose remained concerned for Randall’s well-being

       after Randall became alert and approached [Deputy Rose’s vehicle].” Br. of

       Appellant at 19. Instead, Randall points to Deputy Rose’s testimony that he

       “ordered him back to his vehicle . . . for concerns of officer safety,” tr., vol. 1 at

       10, and the facts that Deputy Rose never asked about Randall’s well-being or

       inquired as to whether he required medical attention as evidencing that

       Randall’s detention was unrelated to any ongoing emergency.


[21]   Having concluded there was an objectively reasonable basis to believe Randall

       initially required medical assistance, we also conclude that his subsequent

       behavior—quickly becoming alert, exiting his vehicle, and approaching Deputy

       Rose’s vehicle at a fast pace—objectively supported that concern, even if that

       same behavior dispelled any suspicion that Randall was dead or unconscious.



       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 14 of 22
       See Fisher, 558 U.S. at 49 (noting that “Officers do not need ironclad proof of a

       likely serious, life-threatening injury to invoke the emergency aid exception.”).


[22]   Moreover, we do not view Deputy Rose ordering Randall to return to his

       vehicle for “concerns of officer safety,” tr., vol. 1 at 10, as necessarily negating

       his concern for Randell’s well-being. Concerns of officer safety and the

       emergency aid exception are not mutually exclusive. See Jones v. State, 54

       N.E.3d 1033, 1039 (Ind. Ct. App. 2016) (holding a protective sweep under

       emergency aid exception was permissible where it was conducted before the

       underlying concern of the emergency aid exception was dissipated). And,

       unlike the traffic stop in M.O., conducted after the vehicle safely left the gas

       station and after the officer observed M.O. safely operating her vehicle, the facts

       that Deputy Rose confronted were uncertain and rapidly evolving: Randall was

       suddenly alert and approaching Deputy Rose’s vehicle at a “fast pace” just

       moments after appearing “slumped over” his steering wheel. Tr., Vol. 1 at 10.

       Therefore, mindful of our deference to the trial court’s determination of facts,

       we cannot say that Deputy Rose’s concern for Randall’s safety dissipated

       immediately after Randall exited his vehicle. Because Deputy Rose possessed

       an objectively reasonable concern for Randall’s safety, we conclude Randall’s

       brief seizure was permissible under the emergency aid exception.


                                            2. Article 1, Section 11

[23]   Randall also argues that his seizure was unreasonable under Article 1, Section

       11 of the Indiana Constitution.


       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 15 of 22
[24]   Although Article 1, Section 11 shares the same language as the Fourth

       Amendment, we nevertheless interpret and apply the provision independently.

       State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004). Notably, instead of

       “focusing on the defendant’s reasonable expectation of privacy, we focus on the

       actions of the police officer, and employ a totality-of-the-circumstances test to

       evaluate the reasonableness of the officer’s actions.” Duran v. State, 930 N.E.2d

       10, 17 (Ind. 2010) (internal quotations omitted). We give Article 1, Section 11

       “a liberal construction in favor of protecting individuals from unreasonable

       intrusions on privacy.” Rush v. State, 881 N.E.2d 46, 52 (Ind. Ct. App. 2008).

       Further, it is the State’s burden to prove its intrusion was reasonable under the

       circumstances. Bulington, 802 N.E.2d at 438. To determine reasonableness, we

       consider: “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.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).


[25]   Beginning with the first factor, Randall argues that suspicion a violation

       occurred was “nonexistent.” Br. of Appellant at 22. While true, the State

       raises an interesting issue in that the Litchfield opinion was written in the

       criminal context and notes that our supreme court has never specifically

       addressed how to apply the first Litchfield factor outside a criminal investigation.

       Br. of Appellee at 20. Indeed, although our supreme court mentioned the

       Litchfield factors in M.O., the court never expressly addressed them but rather

       simply explained that, “Given that our extensive Fourth Amendment analysis .

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 16 of 22
       . . also discusses these factors, we see no need to repeat that discussion here,”

       before concluding that the traffic stop was also impermissible under the Indiana

       Constitution. M.O., 63 N.E. at 334. As discussed in more detail above,

       however, the Court addressed the officer’s concern for M.O.’s safety in the

       context of the Fourth Amendment and explained that while the concern was

       reasonable when responding to a report of a woman stuck under her car—the

       “actual facts” he confronted “did not objectively support that concern.” Id.

       Conversely, in Cruz-Salazar, the supreme court found that opening the door of a

       vehicle was reasonable where it had been running for thirty minutes and its

       occupant was unresponsive to police attempts to awake him. 63 N.E.3d at

       1056-57.


[26]   The combination of the two cases suggests that the “the degree of concern,

       suspicion, or knowledge that a violation has occurred,” Litchfield, 824 N.E.2d at

       361, can be read in the context of the emergency aid exception as “the degree of

       concern that emergency medical assistance was needed,” M.O., 63 N.E.3d at

       333. As noted above, Deputy Rose’s initial degree of concern was high—he

       encountered a man slumped over a steering wheel with his door open in a

       hospital parking lot where people had previously died. Tr., Vol. 1 at 11.

       Although that concern may have lowered when Randall exited his vehicle, his

       objectively reasonable concern remained.


[27]   The second factor is “the degree of intrusion the method of the search or seizure

       imposes on the citizen’s ordinary activities.” Litchfield, 824 N.E.2d at 361.

       Deputy Rose ordered Randall to return to his vehicle before approaching the

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 17 of 22
       driver’s side and speaking with him through his driver’s door. Although the

       State admits that Randall was seized for the purposes of the Fourth

       Amendment, the degree of intrusion was low because Deputy Rose simply

       directed Randall to return to his own vehicle—the place where he had been just

       moments before. Compare State v. Cunningham, 26 N.E.3d 21, 26 (Ind. 2015)

       (noting that ordering an occupant to remain in the car is a “lesser” intrusion)

       with Trotter, 933 N.E.2d at 582 (noting the degree of officer’s intrusion was

       “immense” where officers entered a structure attached to private residence).


[28]   Finally, despite the extent of law enforcement needs being relatively low, we

       conclude that the balancing of a high concern and minimal intrusion weighs in

       favor of Randall’s brief seizure. Accordingly, we conclude the seizure was

       permissible under Article 1, Section 11 of the Indiana Constitution.


                                                 III. Miranda
[29]   Next, Randall argues his incriminating statements were made in violation of

       Miranda and that the evidence resulting therefrom was fruit of the poisonous

       tree. The State responds that Randall was not in custody for the purposes of

       Miranda. We agree with the State and conclude that Randall’s seizure was no

       more custodial than a routine traffic stop.


[30]   Here, after observing Randall’s various behaviors and a small piece of folded

       aluminum foil that Deputy Rose believed to be consistent with narcotic use,

       Deputy Rose told Randall that he “had experience” and asked him “what else

       [was] in the vehicle he would not want a canine officer to find.” Tr., Vol. 1 at

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 18 of 22
       17. In response, Randall confessed to having a marijuana pipe and Deputy

       Rose ordered Randall out of his vehicle in order to conduct a search. When

       Randall failed to comply, Deputy Rose placed him in a wrist lock and another

       officer aimed a taser at him. Deputy Rose then testified:


               [Randall] began crying immediately and stated it’s in the door,
               it’s in the door. And so I had to, you know, ask him what are
               you talking about. And he said that there was meth in the door.
               And I looked to the left and clearly in plain view in the door in
               the pocket I could see a clear plastic baggie which had a white
               powdery substance in it.


       Tr., Vol. 1 at 14-15.


[31]   “[T]he prosecution may not use statements, whether exculpatory or

       inculpatory, stemming from custodial interrogation of the defendant unless it

       demonstrates the use of procedural safeguards effective to secure the privilege

       against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444 (1966).

       Prior to any custodial interrogation, “the person must be warned that he has a

       right to remain silent, that any statement he does make may be used as evidence

       against him, and that he has a right to the presence of an attorney, either

       retained or appointed.” Id. Statements elicited in violation of Miranda

       generally are inadmissible in a criminal trial. Loving v. State, 647 N.E.2d 1123,

       1125 (Ind. 1995). The triggering requirement for a Miranda warning is

       “custodial interrogation.” State v. Brown, 70 N.E.3d 331, 335 (Ind. 2017).


[32]   “‘Interrogation’ for the purposes of Miranda constitutes questions, words, or

       actions that the officer knows or should know are reasonably likely to elicit an
       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 19 of 22
       incriminating response.” Id. Undoubtedly, Deputy Rose knew his question,

       asking Randall “what else [was] in the vehicle he would not want a canine

       officer to find,” was likely to elicit an incriminating response. Tr., Vol. 1 at 17.

       Therefore, this issue turns on whether Randall was in custody at the time of

       Deputy Rose’s questioning.


[33]   Randall argues that he was in custody for the purposes of Miranda because “no

       reasonable person in his shoes would have felt free to terminate the questioning

       and leave the parking lot.” Br. of Appellant at 28. Although that indeed may

       be true, Randall’s argument confuses a seizure under the Fourth Amendment

       with custody under the Fifth Amendment. Our supreme court recently

       explained this issue in Brown:


               to the extent that Brown is arguing that a seizure under the
               Fourth Amendment is akin to custody under the Fifth
               Amendment, the U.S. Supreme Court has made clear that this is
               not the case. The test of 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. Further, the United States Supreme Court has
               repeatedly held that a person temporarily detained in an ordinary
               traffic stop is not in custody for the purposes of Miranda. In
               Berkemer [v. McCarty, 468 U.S. 420 (1984)], the U.S. Supreme
               Court made clear that a traffic stop “significantly curtails the
               ‘freedom of action’ of the driver” and that “[c]ertainly few
               motorists would feel free to disobey a direction to pull over or
               leave the scene of a traffic stop without being told they might do
               so.” Berkemer, 468 U.S. at 436-37. Thus, it concluded that a
               traffic stop is a “seizure” within the meaning of the Fourth
               Amendment. Nevertheless, the Court declined to find that this
               seizure was custody for Miranda purposes. Id. at 437. Our

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018      Page 20 of 22
               Court has similarly held that a suspect who was stopped and
               “seized” for purposes of the Fourth Amendment is not ordinarily
               in custody. Meredith v. State, 906 N.E.2d 867, 873-74 (Ind. 2009).


       70 N.E.3d at 335-36 (emphasis added) (some citations and quotations omitted).


[34]   Although Randall’s seizure was initiated by the emergency aid exception, it

       quickly evolved into a criminal investigation. See Cruz-Salazar, 63 N.E.3d at

       1056 (emergency aid exception evolving into criminal investigation); State v.

       Gray, 997 N.E.2d 1147, 1152 (Ind. Ct. App. 2013) (“Once a justifiable stop is

       made, the scope of the officer’s investigation may be broadened beyond the

       purpose for which the person was stopped only if additional particularized and

       objective suspicions come to light.”), trans. denied. Thus, for purposes of

       Miranda, we find no meaningful distinction between this encounter and a traffic

       stop—or a Terry stop, for that matter. In Berkemer, the United States Supreme

       Court noted two reasons why those two types of encounters do not trigger

       Miranda. First, it emphasized the temporary and brief nature of the stop:

       “questioning incident to an ordinary traffic stop is quite different from

       stationhouse interrogation, which frequently is prolonged, and in which the

       detainee often is aware that questioning will continue until he provides his

       interrogators the answers they seek.” Berkemer at 438. Second, it noted the

       public nature of the stop: “[t]he atmosphere surrounding an ordinary traffic stop

       is substantially less ‘police dominated’ than that surrounding the kinds of

       interrogation at issue in Miranda . . . .” Id. at 438-39.




       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 21 of 22
[35]   Both reasons apply to the facts presented here. The record reveals that Deputy

       Rose only asked one question before Randall admitted to the possession of

       paraphernalia and the seizure occurred in a public hospital parking lot. See

       Brown, 70 N.E.3d at 336-37 (concluding an Arby’s parking lot was “at least as

       public as a routine traffic stop”). Although Randall argues Deputy Rose

       engaged in subterfuge by mentioning a police canine, we conclude his seizure

       was no more custodial than a routine traffic stop.



                                                Conclusion
[36]   Despite the trial court erroneously applying the community caretaking function,

       its ruling was sustainable on the emergency aid exception. We therefore

       conclude that Randall’s seizure was reasonable and his statements were not

       made in violation of Miranda. Accordingly, we affirm the trial court’s denial of

       Randall’s motion to suppress.


[37]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1779 | April 26, 2018   Page 22 of 22
