      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                     FILED
      this Memorandum Decision shall not be
                                                                            Oct 16 2019, 5:27 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                               CLERK
                                                                             Indiana Supreme Court
      the defense of res judicata, collateral                                   Court of Appeals
                                                                                  and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Paul J. Podlejski                                        Curtis T. Hill, Jr.
      Anderson, Indiana                                        Attorney General of Indiana
                                                               Caroline G. Templeton
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Anthony M. Galloway,                                     October 16, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-2954
              v.                                               Appeal from the Madison Circuit
                                                               Court
      State of Indiana,                                        The Honorable David A. Happe,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               48C04-1110-FB-1908



      Mathias, Judge.


[1]   After Anthony M. Galloway (“Galloway”) was stopped for a traffic violation, a

      Tipton County Sheriff’s Deputy conducted a warrantless search of Galloway’s


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2954 | October 16, 2019               Page 1 of 10
      vehicle and discovered methamphetamine. The State filed a notice of probation

      violation in Madison County, and Galloway moved to suppress the evidence

      during a revocation hearing. The trial court denied the motion, found Galloway

      to be in violation of the terms of his probation, and revoked Galloway’s 2,047-

      day suspended sentence to the Indiana Department of Correction (“DOC”).

      Galloway appeals the denial of his motion to suppress on the grounds that his

      consent to the search while in custody was invalid. We affirm.


                                 Facts and Procedural History
[2]   In October 2011, the State charged Galloway with Class B felony dealing

      methamphetamine and Class D felony maintaining a common nuisance.

      Galloway pled guilty to the offenses and was sentenced in June 2015 to ten

      years in the DOC. At that time, he received credit for 993 days served and the

      remaining five-year, 222-day portion of the sentence was suspended to

      probation. Among the terms of his probation was that Galloway “obey all

      municipal, state, and federal laws” and “abstain from illicit drug use.”

      Appellant’s App. p. 85. Galloway consented to the use of the results of drug

      screens and searches of his person, home, auto, etc., in any future court

      proceedings. Id.


[3]   In May 2018, the State filed a notice of probation violation alleging that

      Galloway violated nine terms of his probation, among them failure to abstain

      from the use of illicit drugs and failure to behave well in society by possessing

      methamphetamine. Appellant’s App. p. 119. A warrant was issued for

      Galloway’s arrest on July 17, 2018. Appellant’s App. p. 120.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2954 | October 16, 2019   Page 2 of 10
[4]   On July 31, 2018, Tipton County Sheriff’s Deputy Jordan Wiseman (“Deputy

      Wiseman”) observed a vehicle driven by Galloway make a turn without

      signaling. Deputy Wiseman initiated a traffic stop, and when Galloway

      retrieved his registration from the glovebox, Deputy Wiseman saw plastic

      baggies inside the glovebox that he recognized as consistent with drug activity.

      Tr. p. 17. Deputy Wiseman returned to his patrol car, ran Galloway’s name,

      and learned that there was an outstanding warrant for his arrest in Madison

      County. Tr. p. 20. Accordingly, Deputy Wiseman handcuffed Galloway and

      placed him in the back of his patrol car. Id. Then, Deputy Wiseman asked

      Galloway for permission to search the vehicle, and Galloway consented. Id.at

      21. Galloway was not read his Pirtle warning, but Deputy Wiseman testified

      that he told Galloway the following: “I did tell him that he had the opportunity

      to decline [the search] and that, if he needed an attorney or he could have an

      attorney, if needed.” Id. And: “I advised him that he could tell [me] no in my

      request for consent to search his vehicle, and I also advised him [he] could have

      an attorney before he consented.” Id.


[5]   In the center console of the vehicle, Deputy Wiseman found a “sizeable” bag

      containing 6.44 grams of a substance that field-tested positive for

      methamphetamine. Tr. pp. 23–24. After the illicit substance was discovered, a

      second officer advised Galloway of his Miranda rights, and Galloway waived

      those rights. Tr. p. 25. Galloway admitted that he intended to sell the

      methamphetamine for $250. Id. A GPS device, still active in Galloway’s

      vehicle, revealed that he was en route to a known drug house. Tr. pp. 25–26.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2954 | October 16, 2019   Page 3 of 10
      His car was eventually towed pursuant to the Tipton County Sheriff’s

      Department inventory and impound policy. Tr. p. 26. Galloway was charged

      with Level 3 felony dealing in methamphetamine and Level 5 felony possession

      of methamphetamine.1 Appellant’s App. pp. 133, 141–42.


[6]   On August 9, 2018, the State amended its notice of violation of probation,

      originally filed in May, to include the July 31, 2018, charges. Appellant’s App.

      pp. 133, 182–83. Galloway entered a denial at the initial hearing on the

      probation violation matter in October 2018. Tr. pp. 5–7. An evidentiary hearing

      was held the next month, at which time Galloway made a motion to suppress

      all evidence and any statements that were the result of the warrantless search.

      The trial court took the motion under advisement and, after presentation of

      evidence and argument by both parties, denied Galloway’s motion. The trial

      court found him to have violated the terms and conditions of his probation and

      revoked 2,047 days of his suspended sentence to the DOC. Tr. pp. 42–43;

      Appellant’s App. pp. 163–64. Galloway filed a timely appeal of the trial court’s

      order.


                                       Discussion and Decision
[7]   We review a trial court’s ruling on a motion to suppress under a standard

      “similar to other sufficiency issues” – whether, without reweighing the

      evidence, there is “substantial evidence of probative value that supports the trial




      1
          These charges were filed under cause number 80C01-1808-F3-349.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2954 | October 16, 2019   Page 4 of 10
      court’s decision.” State v. Richardson, 927 N.E.2d 379, 385 (Ind. 2010). We

      “consider the evidence favorable to the trial court’s ruling” but also consider

      “substantial uncontradicted evidence to the contrary, to decide whether the

      evidence is sufficient to support the ruling.” Holder v. State, 847 N.E.2d 930, 935

      (Ind. 2006). If the trial court made any findings of fact, we will review them

      only for clear error. Murphy v. State, 747 N.E.2d 557, 559 (Ind. 2001). The

      ultimate ruling on the constitutionality of a search under Article 1, Section 11 of

      the Indiana Constitution is a legal conclusion that we review de novo.2

      McIlquham v. State, 10 N.E.3d 506, 511 (Ind. 2014).


[8]   The Fourth Amendment protects people from unreasonable search and seizure,

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

      Amendment. U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S. 643, 650, 81 S.Ct.

      1684, 6 L.Ed.2d 1081 (1961). Warrantless searches and seizures are

      presumptively unreasonable “subject only to a few specifically established and

      well delineated exceptions.” Minnesota v. Dickerson, 508 U.E. 366, 372, 113 S.Ct.

      2130, 124 L.Ed.2d 334 (1993) (citations omitted). When a search is conducted

      without a warrant, it is the State’s burden to show that the search was justified

      at the time it occurred by an exception to the general rule. Krise v. State, 746

      N.E.2d 957, 961 (Ind. 2001).




      2
       Galloway states but does not argue that the warrantless search of his vehicle violated his rights under the
      Fourth Amendment to the United States Constitution, in addition to his rights under Indiana’s Constitution.
      Appellant’s Br. at 7. Because he failed to present a cogent argument supported by citation to authorities, he
      has waived this claim of error for our review. See Ind. Appellate Rule 46(A)(8)(a).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2954 | October 16, 2019                 Page 5 of 10
[9]    A valid consent to search is one recognized exception to the warrant

       requirement. State v. Cunningham, 26 N.E.3d 21, 25 (Ind. 2015). A search based

       on lawful consent is consistent with both the Indiana and Federal

       Constitutions. Campos v. State, 885 N.E.2d 590, 600 (Ind. 2008). The theory

       underlying this exception is that, when an individual gives the State permission

       to search either his person or property, the governmental intrusion is

       presumably reasonable. Buckley v. State, 797 N.E.2d 845, 849 (Ind. Ct. App.

       2003) (citing Pinkney v. State, 742 N.E.2d 956, 959 (Ind. Ct. App. 2001), trans.

       denied). Indiana courts have long held that a person in police custody must be

       informed of the right to consult with counsel about the possibility of consenting

       to a search before valid consent can be given. Pirtle v. State, 263 Ind. 16, 29, 323

       N.E.2d 634, 640 (1975); see also Jones v. State, 655 N.E.2d 49 (Ind. 1995). Pirtle

       established that Article 1, Section 11 of the Indiana Constitution requires that a

       person in custody explicitly waive the right to counsel before giving valid

       consent to a search. Clarke v. State, 868 N.E.2d 1114, 1119 (Ind. 2007).3


[10]   Galloway contends that the trial court erred in denying his motion to suppress

       because his consent to the search was invalid due to Deputy Wiseman’s failure

       to read Galloway the Pirtle advisement. Appellant’s Br. at 9–10. Indeed, Deputy

       Wiseman admitted that he did not read the text of the warning verbatim. Tr. p.



       3
         Because the parties do not dispute that Galloway was in custody when he gave consent, we do not address
       Deputy Wiseman’s investigatory detention and subsequent arrest and custodial interrogation. See Jones, 655
       N.E.2d at 55. Additionally, the voluntariness of Galloway’s consent is not challenged on appeal, and so we
       presume the trial court was satisfied that the State met its burden of demonstrating the consent was given
       freely. See State v. Scheibelhut, 673 N.E.2d 821, 824 (Ind. Ct. App. 1996).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2954 | October 16, 2019               Page 6 of 10
       21. But Deputy Wiseman testified that he advised Galloway of his right to

       refuse to agree to the search and of his right to consult with counsel:

               Q: [D]id you advise [Galloway] of the substance of Pirtle as far as
               you understand it?


               A: Um, yes.


               Q: Okay. What specifically did you tell [Galloway]?


               A: Um, I advised him that he could tell [me] no in my request for
               consent to search his vehicle, and I also advised him [he] could
               have an attorney before he consented.


               Q: Okay. And, having been advised of that, did [Galloway]
               consent to the search of his vehicle?


               A: Yes, he did.


       Id.


[11]   Galloway argues this exchange with Deputy Wiseman did not “satisfy the

       requirements of Pirtle” and invalidated his consent. Appellant’s Br. at 10. His

       appeal urges us to give one particularly phrased version of the Pirtle warning

       special significance, apparently because Deputy Wiseman did not read from the

       card he carried that was pre-printed with the Pirtle warning. Appellant’s Br. at

       9–10. In other words, Galloway asks us to elevate form over substance, which

       we decline to do. See, e.g., French v. State, 754 N.E.2d 9, 15 (Ind. Ct. App. 2001)

       (where the purpose of a rule is satisfied, this court will not elevate form over

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2954 | October 16, 2019   Page 7 of 10
       substance). The substance of Deputy Wiseman’s advisement was sufficient to

       fulfill the protection that Pirtle and Article 1, Section 11 of the Indiana

       Constitution guarantee to Hoosiers.


[12]   Galloway also argues that his consent to the search was not given voluntarily.

       Appellant’s Br. at 9. 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. Thurman v. State, 602 N.E.2d 548, 552 (Ind. Ct.

       App. 1992), trans. denied. The voluntariness of a consent to search is a question

       of fact to be determined from the totality of the circumstances. Id. Knowledge

       of the right to refuse a search is one factor that indicates voluntariness. Id.


               [T]he ‘totality of circumstances’ [from which the voluntariness of
               a detainee’s consent is to be determined] includes, but is not
               limited to, the following considerations: (1) [w]hether the
               defendant was advised of his Miranda rights prior to the request
               to search; (2) the defendant’s degree of education and
               intelligence2; (3) whether the defendant was advised of his right
               not to consent; (4) whether [the officer] made any express or
               implied claims of authority to search without consent; (5)
               whether [the officer] was engaged in any illegal action prior to
               the request; (6) whether the defendant previously was
               cooperative; and (7) whether [the officer] was deceptive as to his
               true identity or the purpose of his search.

               2
                We note here that a defendant’s previous encounters with law
               enforcement, if any, is relevant on the question of whether that
               defendant knew of the right to refuse consent.


       State v. Scheibelhut, 673 N.E.2d 821, 824 & n.2 (Ind. Ct. App. 1996).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2954 | October 16, 2019   Page 8 of 10
[13]   Although Galloway was not ‘Mirandized’ before consenting to the search, he

       was given a verbal advisement of his Pirtle rights. Tr. pp. 21, 25. Factors five,

       six, and seven are not relevant to determine voluntariness because there is no

       suggestion that Deputy Wiseman made any claims of authority to search

       without Galloway’s consent, engaged in any illegal action prior to the request,

       or was deceptive as to his identity or the purpose of the search. Neither the

       probable cause affidavit nor any testimony at Galloway’s revocation hearing

       suggest he was uncooperative. The strongest indication that Galloway’s consent

       was knowing and voluntary is based on his degree of intelligence and his prior

       experience with law enforcement. Galloway had been serving his suspended

       sentence on probation since 2015, when the probation order was entered in

       Madison County. Appellant’s App. p. 84–89. The order listed various standard

       terms of Galloway’s probation, including: “You will waive your right against

       search and seizure and permit Probation Officer (or any law enforcement officer

       acting on behalf of the Probation Department) to search your person, residence,

       motor vehicle, or any location where your personal property may be found, to

       ensure compliance with your conditions of probation[.]” Appellant’s App. p.

       85. We do not point this out to suggest that Galloway – or any other

       probationer – waived his right to be free from unlawful search and seizure by

       any law enforcement officer. We do, however, find that the terms of probation

       to which Galloway knew he was subject and his years of familiarity with the

       Probation Department are circumstances indicating that, when he consented to

       Deputy Wiseman’s search, Galloway did so voluntarily and in full knowledge

       of the consequences.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2954 | October 16, 2019   Page 9 of 10
[14]   Based on Deputy Wiseman’s testimony at the probation revocation hearing, the

       credibility of which we will not reweigh, and the totality of the circumstances,

       we find that Galloway voluntarily consented to the search with the knowledge

       that he had the right to speak to an attorney before deciding whether to consent.

       Thus, the consent exception to the warrant requirement justified the warrantless

       search of his vehicle, and the trial court’s denial of Galloway’s motion to

       suppress evidence gathered from the search was not in error.


                                                 Conclusion
[15]   The warrantless search of Galloway’s car was constitutional because Galloway

       received an advisement that satisfied Pirtle and he voluntarily consented to the

       search. We therefore conclude that the search comported with the dictates of

       Article 1, Section 11 of the Indiana Constitution. The trial court did not err in

       denying Galloway’s motion to suppress the evidence seized in the search. The

       judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2954 | October 16, 2019   Page 10 of 10
