                                                                        FILED
                                                                    Jul 11 2019, 9:00 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
John Andrew Goodridge                                       Curtis T. Hill, Jr.
Evansville, Indiana                                         Attorney General of Indiana
                                                            Chandra K. Hein
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Joseph C. Hudson,                                           July 11, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-2628
        v.                                                  Appeal from the Gibson Circuit
                                                            Court
State of Indiana,                                           The Honorable Jeffrey F. Meade,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            26C01-1605-F5-449



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2628 | July 11, 2019                           Page 1 of 11
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Joseph C. Hudson (Hudson), appeals the trial court’s

      denial of his motion to suppress certain evidence.


[2]   We affirm.


                                                     ISSUES
[3]   Hudson raises two issues in this interlocutory appeal, which we restate as:


          (1) Whether the trial court properly denied Hudson’s motion to suppress his

              statements made prior to being given Miranda warnings; and

          (2) Whether the trial court properly denied Hudson’s motion to suppress the

              evidence discovered pursuant to a warrantless search of his vehicle.


                       FACTS AND PROCEDURAL HISTORY
[4]   On April 29, 2016, Officer Jason B. Wright of the Owensville Police

      Department (Officer Wright) was dispatched to 205 North Scott Street in

      Owensville, Indiana, on a report of a domestic disturbance. Officer Wright was

      informed that the ex-husband, later identified as Hudson, was on the scene and

      possibly had a handgun. When Officer Wright arrived, he saw Hudson,

      Caligaro Sparacino (Sparacino), and Sparacino’s son standing next to a black

      Dodge pick-up. Officer Wright placed Hudson in handcuffs and put him in the

      back of his patrol car.


[5]   After placing Hudson in the backseat of the police vehicle, Officer Wright

      “asked him what was going on this evening and where the gun was at.”

      Court of Appeals of Indiana | Opinion 18A-CR-2628 | July 11, 2019        Page 2 of 11
      (Transcript p. 6). Hudson responded that “he didn’t know anything about a

      gun, and then he told [the officer] that [he] and his ex-wife got in an argument.

      Then the daughter stepped in.” (Tr. p. 6). Returning to the other people on the

      scene, Officer Wright spoke with Sparacino. Sparacino informed him that

      Hudson wanted help loading a brake press. While Sparacino was helping

      Hudson, an argument broke out between Hudson and his ex-wife, “and the

      daughter stepped in between them. Then [Hudson] knocked the daughter

      down.” (Tr. p. 7). Sparacino explained that he tried to break up the parties,

      and he was briefly successful when Hudson returned to his truck. Hudson’s

      daughter confirmed Sparacino’s version of the event and added that “her dad

      hit her in the face and knocked her down.” (Tr. p. 27). She advised the officer

      that after Sparacino interfered, she saw her father return to the truck and get a

      gun. “She watched him walk to the front of the truck and cock the gun.” (Tr.

      p. 27).


[6]   Based on Hudson’s daughter’s disclosure and his own safety concerns, Officer

      Wright searched the truck and “found an empty holster on the driver side seat.”

      (Tr. p. 16). Officer Wright returned to his police vehicle to speak with Hudson

      again. Officer Wright “still didn’t locate a gun, [but] [he] knew there was a gun

      somewhere. [He] just didn’t know where it was at.” (Tr. p. 17). Officer

      Wright told Hudson that he had found a gun holster and gave him Miranda

      warnings. He then asked Hudson “why he got the handgun out. And

      [Hudson] told [him] that it was for his protection.” (Tr. p. 10). The officer later

      located the handgun in Hudson’s truck.


      Court of Appeals of Indiana | Opinion 18A-CR-2628 | July 11, 2019         Page 3 of 11
[7]   On May 6, 2016, the State filed an Information, charging Hudson with Count I,

      intimidation with a deadly weapon, a Level 5 felony, Ind. Code § 35-45-2-

      1(a)(2), (b)(2)(A); and Count II, battery, a Class B misdemeanor, I.C. § 35-42-2-

      1(b)(1). On July 18, 2016, Hudson filed a motion to suppress evidence. On

      October 31 and November 28, 2016, the trial court conducted a hearing on

      Hudson’s motion, and subsequently denied his motion on September 14, 2018.

      On October 1, 2018, Hudson filed a motion to certify the trial court’s decision

      for interlocutory appeal, which was granted by the trial court two days later.

      On October 31, 2018, the court of appeals accepted jurisdiction over the

      interlocutory appeal.


[8]   Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
[9]   Hudson contends that the trial court abused its discretion by denying his

      motion to suppress. Where a party appeals from the trial court’s grant or denial

      of a motion to suppress, it appeals from a negative judgment and must show

      that the ruling on the motion was contrary to law. State v. Keller, 845 N.E.2d

      154, 161 (Ind. Ct. App. 2006). We reverse only where the evidence is without

      conflict and all reasonable inferences lead to a conclusion opposite that reached

      by the trial court. Id. We treat the review of a motion to suppress in a fashion

      similar to instances in which the sufficiency of the evidence is challenged. Id.

      To this end, we will not reweigh the evidence or judge witness credibility, and

      consider the evidence most favorable to the trial court’s ruling. Id. In doing so,


      Court of Appeals of Indiana | Opinion 18A-CR-2628 | July 11, 2019        Page 4 of 11
       “we must review the totality of the circumstances, thereby requiring this court

       to review all the facts and circumstances that are particular to the case.” Id.

       However, the review of a denial of a motion to suppress is different from other

       sufficiency matters in that we must also consider uncontested evidence that is

       favorable to the defendant. Jones v. State, 54 N.E.3d 1033, 1036 (Ind. Ct. Ap.

       2016), trans. denied. We will disturb the trial court’s ruling on a motion to

       suppress only upon a showing of abuse of discretion. Id.


                                               I. Miranda Warnings


[10]   Focusing on the officer’s initial encounter with Hudson and the officer’s

       questioning to ascertain the seriousness of the situation, Hudson contends that

       Officer Wright should have provided him with Miranda warnings at the

       moment he was being handcuffed and submitted to a custodial interrogation.


[11]   In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694

       (1966), the United States Supreme Court held that the “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.” 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.


       Court of Appeals of Indiana | Opinion 18A-CR-2628 | July 11, 2019         Page 5 of 11
       1995). The trigger to require a Miranda rights advisement is custodial

       interrogation. State v. Brown, 70 N.E.3d 331, 335 (Ind. 2017). Questioning an

       individual the police suspect of a crime does not inherently render the

       questioning custodial interrogation. Reid v. State, 113 N.E.3d 290, 300 (Ind. Ct.

       App. 2018), trans. denied. Courts look to the “totality of the circumstances” to

       determine whether a person was in custody. Brown, 70 N.E.3d at 335; see also

       Hicks v. State, 5 N.E.3d 424, 429 (Ind. Ct. App. 2014) (“We examine all the

       circumstances surrounding an interrogation and are concerned with objective

       circumstances, not with the subjective views of the interrogating officers or the

       suspect.”), trans. denied. Although courts have compiled a non-exhaustive list of

       factors which may be taken into account to determine whether a person is in

       custody, ultimately, the inquiry is whether there has been a “formal arrest or

       restraint on freedom of movement of the degree associated with a formal

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


[12]   When Officer Wright arrived on the scene, he was faced with a report of

       domestic disturbance, three individuals, and the allegation that a gun was

       possibly involved. In an attempt to decrease the tension and to provide a safe

       environment for everyone, Officer Wright separated the parties by placing

       Hudson in handcuffs and in the back of his patrol vehicle. Trying to confirm

       the presence or location of a possible weapon, Officer Wright asked Hudson

       “what was going on this evening and where the gun was at.” (Tr. p. 6). After

       denying any knowledge about a gun, Hudson advised the officer that he and his

       ex-wife had gotten in an argument.

       Court of Appeals of Indiana | Opinion 18A-CR-2628 | July 11, 2019         Page 6 of 11
[13]   We have previously held that the use of handcuffs would cause a reasonable

       person to feel that one was not free to leave and that one’s freedom of

       movement was retrained to the degree associated with a formal arrest. Wright v.

       State, 766 N.E.2d 1223, 1230 (Ind. Ct. App. 2002); see also Loving, 647 N.E.2d at

       1125-26. Accordingly, we find that Hudson was in custody when handcuffed

       for officer safety and placed in the back of the patrol vehicle.


[14]   Next, we must determine whether Officer Wright’s inquiry amounted to police

       interrogation. For purposes of Miranda, police interrogation includes both

       express questioning and words or actions that, given the officer’s knowledge,

       the officer should know are reasonably likely to elicit an incriminating response

       from the suspect. Wright, 766 N.E.2d at 1230. The interrogation must involve

       a measure of compulsion beyond that inherent in custody itself. Id. Not every

       question an officer asks amounts to interrogation for purposes of Miranda.

       Wissman v. State, 540 N.E.2d 1209, 1212 (Ind. 1989).


[15]   Based on the totality of the circumstances, we conclude that Officer Wright’s

       initial question to Hudson amounted to an inquiry into the facts of the

       situation, which did not require a Miranda advisement. When the officer

       arrived at the scene, he was aware that a gun might possibly be involved;

       however, unaware of its presence or its ownership, the officer commenced his

       investigation by separating the parties. Trying to ascertain whether his

       information was correct, the officer inquired as to “where the gun was[.]” (Tr.

       p. 6). Without more definite information about the presence, location, or

       ownership of the weapon, Officer Wright conducted “[g]eneral on-the-scene

       Court of Appeals of Indiana | Opinion 18A-CR-2628 | July 11, 2019          Page 7 of 11
       questioning as to facts surrounding a crime or other general questioning of

       citizens in the fact-finding process,” which does not fall within the purview of

       Miranda requirements. Miranda, 384 U.S. at 477-78; Hatcher v. State, 410

       N.E.2d 1187, 1189 (Ind. 1980); Orr v. State, 472 N.E.2d 627, 636 (Ind. Ct. App.

       1984), trans. denied. It was only after Officer Wright spoke with Hudson’s

       daughter who confirmed the actual presence of a gun, and the discovery of a

       holster in Hudson’s truck, that Miranda warnings were implicated prior to

       questioning Hudson a second time. Officer Wright’s testimony reveals that

       upon returning to his patrol vehicle and questioning Hudson a second time to

       find the location of Hudson’s gun, Officer Wright Mirandized Hudson.

       Accordingly, we affirm the denial of the trial court’s motion to suppress with

       respect to Hudson’s statements.


                                          II. Warrantless Search of Vehicle


[16]   Next, Hudson contends that the search of his truck was conducted in violation

       of the Fourth Amendment to the United States Constitution. 1 The Fourth

       Amendment to the United States Constitution provides, in pertinent part:

       “[t]he right of the people to be secure in their persons, houses, papers, and

       effects, against unreasonable searches and seizures, shall not be violated[.]” As

       a general rule, the Fourth Amendment prohibits warrantless searches.




       1
         Hudson did not present an argument as to the reasonableness of the search under the Indiana Constitution.
       His appellate brief contains no reference to the Indiana Constitution, much less the “separate legal analysis”
       that is required to argue the legality of the search under our State constitution. See State v. Friedel, 714 N.E.2d
       1231, 1243 (Ind. Ct. App. 1999).

       Court of Appeals of Indiana | Opinion 18A-CR-2628 | July 11, 2019                                     Page 8 of 11
       Masterson v. State, 843 N.E.2d 1001, 1004 (Ind. Ct. App. 2006), trans. denied.

       When a search is conducted without a warrant, the State has the burden of

       proving that the search falls into one of the exceptions to the warrant

       requirement. Meister v. State, 933 N.E.2d 875, 878 (Ind. 2010). The automobile

       exception is a well-recognized exception to the warrant requirement. Id. A

       search falls within this exception when the vehicle is readily mobile and

       probable cause exists to believe it contains contraband or evidence of a crime.

       Id. Where there is probable cause to search a vehicle, a search is not

       unreasonable if it is based on facts that would justify the issuance of a warrant,

       even though a warrant has not been obtained. Id. The United States Supreme

       Court has stated that when there is probable cause that a vehicle contains

       evidence of a crime, a warrantless search of the vehicle does not violate the

       Fourth Amendment because of the existence of exigent circumstances arising

       out of the likely disappearance of the vehicle. California v. Acevedo, 500 U.S.

       565, 569, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). Moreover, [i]f a car is

       readily mobile and probable cause exists to believe it contains contraband, the

       Fourth Amendment thus permits police to search the vehicle without more.”

       Pennsylvania v. Labron, 518 U.S. 939, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031

       (1996).


[17]   In Myers v. State, 839 N.E.2d 1146, 1152 (Ind. 2005), our supreme court

       concluded:


               In light of the Supreme Court’s recent emphatic statement in
               Dyson that the automobile exception ‘does not have a separate

       Court of Appeals of Indiana | Opinion 18A-CR-2628 | July 11, 2019         Page 9 of 11
               exigency requirement,’ 527 U.S. at 467 [119 S.Ct. 2013], we
               conclude that this exception to the warrant requirement under
               the Fourth Amendment does not require any additional
               consideration of the likelihood, under the circumstances, of a
               vehicle being driven away. Rather, we understand the ‘ready
               mobility’ requirement of the automobile exception to mean that
               all operational, or potentially operational, motor vehicles are
               inherently mobile, and thus a vehicle that is temporarily in police
               control or otherwise confined is generally considered to be
               readily mobile and subject to the automobile exception to the
               warrant requirement if probable cause is present.


       “Facts necessary to demonstrate the existence of probable cause for a

       warrantless search are not materially different from those which would

       authorize the issuance of a warrant if presented to a magistrate.” Gibson v. State,

       733 N.E.2d 945, 952 (Ind. Ct. App. 2000). “Probable cause to issue a search

       warrant exists where the facts and circumstances would lead a reasonably

       prudent person to conclude that a search of those premises will uncover

       evidence of a crime.” Id.


[18]   We conclude that Officer Wright had probable cause to conduct a warrantless

       search of Hudson’s truck. After speaking with Hudson’s daughter, Officer

       Wright received confirmation of the report that a weapon was involved as well

       as its ownership. Officer Wright also learned from Hudson’s daughter that

       Hudson had reached into his vehicle to get a gun as “[s]he watched him walk to

       the front of the truck and cock the gun.” (Tr. p. 27). Based on these

       statements, Officer Wright could reasonably conclude that Hudson had

       committed intimidation and that a search of the readily mobile truck would


       Court of Appeals of Indiana | Opinion 18A-CR-2628 | July 11, 2019        Page 10 of 11
       uncover evidence of a handgun. Therefore, the warrantless search of the

       vehicle was permissible and the trial court properly denied Hudson’s motion to

       suppress.


                                               CONCLUSION
[19]   Based on the foregoing, we hold that the trial court properly denied Hudson’s

       motion to suppress certain statements and the evidence discovered during a

       warrantless search of his vehicle.


[20]   Affirmed.


[21]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Opinion 18A-CR-2628 | July 11, 2019    Page 11 of 11
