MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Jul 24 2018, 9:06 am

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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.                                      Andrew J. Baldwin
Attorney General of Indiana                              Franklin, Indiana

Henry A. Flores, Jr.                                     Michael J. Kyle
Deputy Attorney General                                  Franklin, Indiana
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        July 24, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         36A01-1712-CR-2999
        v.                                               Appeal from the Jackson Circuit
                                                         Court
Ernesto B. Ruiz,                                         The Honorable Richard W.
Appellee-Defendant.                                      Poynter, Judge
                                                         Trial Court Cause No.
                                                         36C01-1510-F4-25



Altice, Judge



Court of Appeals of Indiana | Memorandum Decision 36A01-1712-CR-2999 | July 24, 2018             Page 1 of 13
                                             Case Summary
[1]   The State appeals after the trial court granted Ernesto Ruiz’s motion to suppress

      evidence supporting his charge of Level 4 felony child molesting. The sole issue

      the State raises is whether the trial court erred in granting the motion to

      suppress.


[2]   We reverse and remand for further proceedings.


                                   Facts & Procedural History
[3]   Ruiz was not born in the United States. At the time this case commenced, he

      had been in the United States for approximately sixteen years, was married, and

      had a daughter, M.R.


[4]   According to the probable cause affidavit, on Thursday, October 1, 2015,

      M.R.’s nine-year-old friend M.L. spent the night at M.R.’s house after the two

      attended a local festival. M.R. fell asleep on the couch in the living room, and

      M.L. went to sleep in M.R.’s bedroom.


[5]   Ruiz returned home from work at around 5:30 a.m. on Friday morning. He

      entered the bedroom where M.L. was sleeping and asked M.L. for a hug. M.L.

      obliged.


[6]   Approximately twenty minutes later, M.L., unable to return to sleep, went to

      the living room to see if M.R. was awake. M.L. then walked into the kitchen.

      Soon after, Ruiz entered the kitchen and again hugged M.L. This time,

      however, Ruiz took hold of M.L.’s hand and placed it inside of his shorts onto

      Court of Appeals of Indiana | Memorandum Decision 36A01-1712-CR-2999 | July 24, 2018   Page 2 of 13
      the bare skin of his buttocks. M.L. attempted to pull away but Ruiz told her,

      “No, [n]o, [i]t’s fine.” Appellant’s Appendix Vol. 2 at 18. He then placed her

      hand back on his buttocks. M.L. pulled her hand into the shirt sleeve of her

      pajamas, but Ruiz grabbed her hand and moved it in a circular motion on his

      buttocks while making an “aaahhh” noise. Id. Ruiz then placed his hands on

      M.L.’s buttocks, over her clothes, squeezed, and said, “Yeah.” Id. M.R.

      awoke, and Ruiz left the kitchen and went to bed. M.L. told M.R. about the

      incident, but M.R. told her not to tell anyone. M.L. eventually told one of her

      teachers about the incident.


[7]   On October 7, 2015, Detective Sergeant Greg O’Brien of the Seymour Police

      Department went to Ruiz’s home, advised him of the child molesting

      allegations, told Ruiz that he “needed to interview him” at the police station,

      and then left. Transcript Vol. 1 at 202. Ruiz travelled to the police station on his

      own and entered the station’s unlocked, exterior door that led to a lobby.

      Detective O’Brien met Ruiz in the lobby and escorted him through a secure

      door that led to the administration area of the station. Individuals entering this

      door had to be “buzzed in”; however, there was no impediment to exiting this

      door. Id. at 212. The detective led Ruiz upstairs to an interview room that had

      one door and no windows. Ruiz was seated in the room near the door, and the

      door was closed.


[8]   The interview began with Detective O’Brien advising Ruiz as follows: “All

      right. And do you understand that you don’t have to talk to me? Do you

      understand that? You don’t have to talk to me. . . . And you understand that

      Court of Appeals of Indiana | Memorandum Decision 36A01-1712-CR-2999 | July 24, 2018   Page 3 of 13
       you can get up and walk out that door at any time.” Id. at 215. Ruiz

       acknowledged that he understood. When asked, Ruiz told the detective that he

       spoke Spanish and English and that he “[p]retty much” was fluent in English.

       Id. Ruiz was not provided Miranda warnings.


[9]    Detective O’Brien asked Ruiz general questions about his work, his wife, and

       his daughter. He then asked Ruiz specific questions about what he was doing

       on Thursday, October 1, and what transpired with M.L. on the morning of

       Friday, October 2. Ruiz initially denied that he hugged M.L.


[10]   Approximately thirteen minutes into the interview with Detective O’Brien,

       Detective Sergeant Troy Munson entered the interview room and introduced

       himself. He was wearing plain clothes and did not have his firearm. O’Brien

       and Munson had prearranged that Munson would join the interview. O’Brien

       continued to question Ruiz, and Ruiz eventually told the detectives that while

       he was in the kitchen, M.L. “hugged [him], maybe, yeah.” Id. at 231.


[11]   Detective Munson then began to question Ruiz. He did not repeat Detective

       O’Brien’s statements that Ruiz did not have to talk to him or that Ruiz was free

       to leave the interview room at any time. Detective Munson told Ruiz (falsely),

       “Just tell us [what happened], but don’t lie to us because we’ve already talked
                                                                            [1]
       to this girl, [sic] she’s already had a lie detector done.                 Okay? She passed the

       lie detector test, so we know she’s not lying to us . . . .” Id. at 242. Ruiz



       1
           M.L. had not taken a polygraph test.


       Court of Appeals of Indiana | Memorandum Decision 36A01-1712-CR-2999 | July 24, 2018    Page 4 of 13
       reiterated that the hug with M.L. occurred in the kitchen and added that, during

       the hug, M.L.’s hand might have slid down and touched his buttocks. At one

       point during the interview, Detective Munson told Ruiz:


               Now, we’re going to, we’re going to take a break here. Okay?
               For just a minute. We’re going to, we let you sit in here and, and
               think about some of the stuff we said, but what I want you to
               realize, Ernesto, is we’re not here as your enemies, we’re here as
               the truth. Okay? This isn’t like the crime of the century, what
               she’s claiming that had happened, it’s not a big deal. But what
               makes you look bad is if you start to lie about things that we
               already know to be the truth and we know a lot more things than
               you think that we know because we, because you’re the last that
               we’re interviewing here. Okay? So, I just want you to have the
               opportunity right now to tell us if there was anything that we’ve
               already discussed that you know to not be true and you were just
               scared to tell us about it, but it’s not that big of a deal. Tell us
               now so that we know that you’re being honest with us and you’re
               not, you’re not lying. Is there anything that you know that you
               have told us that is not the truth? Just be honest with us. We
               don’t think you’re a bad guy or anything.


       Transcript Vol. 2 at 7. Ruiz told Detective Munson that another hug between

       him and M.L. had occurred.


[12]   The detectives left the interview room. When they returned, Detective Munson

       said to Ruiz: “The results of this, of this investigation so far, okay, clearly

       indicates [sic] to us, to Officer O’Brien and myself that something, some kind of

       touching did occur between you and, and [M.L.]. . . . And, and it was of an

       inappropriate nature . . . .” Id. at 11. The detectives continued to interview

       Ruiz. The entire interview lasted less than one hour. Ruiz was not restrained

       Court of Appeals of Indiana | Memorandum Decision 36A01-1712-CR-2999 | July 24, 2018   Page 5 of 13
       during the interview. At the conclusion of the interview, Ruiz left the police

       station on his own.


[13]   Ruiz was charged with Level 4 felony child molesting on October 16, 2015. On

       December 3, 2017, Ruiz filed a motion to suppress his statements to the

       detectives. His jury trial began on December 5, 2017. After the jury was

       sworn, the trial court conducted a suppression hearing and took the matter

       under advisement. On December 6, 2017, the trial court granted the motion to

       suppress, stating:


               This is a police setting, this is a secure facility. Yes, [Ruiz]
               voluntarily went there. But he had to be buzzed into the area or
               taken into the area of a secure room, the door is shut. Detective
               O’Brien’s [sic] present. He is told, “You can walk out the door,”
               but again, this is where we get into words. This is what concerns
               me. It’s one thing to say, “I can walk out the door.” I think
               most of us here in America that are from here get the context that
               I’m free to leave. But someone who is not originally from here,
               this is what caused me concern is that you’ve got to be very
               specific they understand that it means basically you’re free to
               leave. That’s where I was really tossing with this issue last night.
               You know, I don’t believe the officers in this case did anything
               inappropriate as far as ill will, but the issue is objective testing.
               Would a reasonable person under the circumstances believe they
               are free to go? And what also causes me concern here is when
               the second officer comes into the room and shuts the door and
               introduces himself, again, would a reasonable person in this
               situation, without being told that “You’re free to leave,” feel free
               to leave, and especially when the questioning becomes very
               focused. And that’s what one of the case law cases talks about is
               basically one of the factors to consider is has the police, have the
               police focused their investigation solely on this person and
               communicated that fact to the Defendant. It’s not just what you

       Court of Appeals of Indiana | Memorandum Decision 36A01-1712-CR-2999 | July 24, 2018   Page 6 of 13
                in your heart as an officer know that you’re focused on this
                person, but you have in fact have communicated that fact to the
                Defendant. There’s no doubt in this situation that the Defendant
                was told that basically, “We believe you did it. We know you
                did it. We’ve got proof you did it,” you know, “She took a lie
                detector test. She passed it,” you know, “Why would she tell us
                this?” I mean, it’s clearly [sic] the police communicated to the
                Defendant that he was the focus of the investigation. . . .


                If the State is going to use multiple officers to interrogate
                someone it has to be clear that just because the second officer
                goes into the room or a third or a fourth, that the situation hasn’t
                changed. But when you have a Defendant who is not originally
                from this country, who is in a room with [a] shut door with two
                (2) officers present, I believe at this point a reasonable person
                would not believe they are free to leave. And therefore, I believe
                Miranda was required.


       Id. at 43-44.


[14]   The trial court declared a mistrial “giv[en] the lateness of the Motion to

       Suppress.” Appellant’s Appendix Vol. 2 at 13. The State noted that without the

       suppressed evidence, it could not proceed on the charge. The trial court issued

       its written order granting the motion to suppress on December 13, 2017. The
                                                                                     2
       State now appeals pursuant to Ind. Code § 35-38-4-2(5). Additional facts will

       be provided as necessary.




       2
         This statute addresses appeals by the State and provides, in relevant part, that the State is permitted to
       appeal from “an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude
       further prosecution.” I.C. § 35-38-4-2(5).

       Court of Appeals of Indiana | Memorandum Decision 36A01-1712-CR-2999 | July 24, 2018               Page 7 of 13
                                           Discussion & Decision
[15]   The State argues that the trial court erred when it granted Ruiz’s motion to

       suppress his statements to the detectives. When reviewing a trial court’s ruling

       on a motion to suppress, we must determine whether substantial evidence of

       probative value supports the trial court’s decision. State v. Quirk, 842 N.E.2d

       334, 340 (Ind. 2006). Where a trial court has granted a motion to suppress, the

       State appeals from a negative judgment and must show that the trial court’s

       grant of the motion was contrary to law. State v. Carlson, 762 N.E.2d 121, 125

       (Ind. Ct. App. 2002). We will reverse a negative judgment only when the

       evidence is without conflict and all reasonable inferences lead to a conclusion

       opposite that of the trial court. Id. We will not reweigh the evidence or judge

       witnesses’ credibility, and we will consider only the evidence most favorable to

       the trial court’s ruling. Id.


                                                 Miranda Rights
[16]   A person must be informed of the rights to remain silent and to have an

       attorney and that what he says may be used against him any time “law

       enforcement officers question a person who has been ‘taken into custody or
                                                                                                        3
       otherwise deprived of his freedom of action in any significant way.’” Luna v.




       3
         “[A] defendant is entitled to the procedural safeguards of Miranda only if subject to custodial interrogation.”
       Lawson v. State, 803 N.E.2d 237, 239 (Ind. Ct. App. 2004) (emphasis added), trans. denied. “‘Interrogation’ is
       defined as ‘express questioning and words or actions on the part of the police that the police know are
       reasonably likely to elicit an incriminating response from the suspect.’” Id. (quoting White v. State, 772
       N.E.2d 408, 412 (Ind. 2002)). The State appears to concede that the detectives’ questions constituted
       “interrogation.”

       Court of Appeals of Indiana | Memorandum Decision 36A01-1712-CR-2999 | July 24, 2018                 Page 8 of 13
State, 788 N.E.2d 832, 833 (Ind. 2003) (quoting Miranda v. Arizona, 384 U.S.

436, 444 (1966)). Statements given in violation of Miranda are normally

inadmissible in a criminal trial. Morris v. State, 871 N.E.2d 1011, 1016 (Ind. Ct.

App. 2007), trans. denied. “Miranda warnings do not need to be given when the

person questioned has not been placed in custody.” Johansen v. State, 499

N.E.2d 1128, 1130 (Ind. 1986). In determining whether a person was in

custody or deprived of freedom such that Miranda warnings are required, “the

ultimate inquiry is simply whether there is a ‘formal arrest or restraint on

freedom of movement’ of the degree associated with a formal arrest.” Luna,

788 N.E.2d at 833 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)).

We will make this determination “by examining whether a reasonable person in

similar circumstances would believe he is not free to leave.” Id.; see also King v.

State, 844 N.E.2d 92, 96-97 (Ind. Ct. App. 2005) (“The test is how a reasonable

person in the suspect’s shoes would understand the situation.”). We will

examine all the circumstances surrounding an interrogation, and are concerned

with “objective circumstances, not upon the subjective views of the

interrogating officers or the subject being questioned.” Gauvin v. State, 878

N.E.2d 515, 520 (Ind. Ct. App. 2007), trans. denied.


        [C]ourts have identified the following factors to be significant in
        determining whether a person is in custody: whether and to what
        extent the person has been made aware that he is free to refrain
        from answering questions; whether there has been prolonged




Court of Appeals of Indiana | Memorandum Decision 36A01-1712-CR-2999 | July 24, 2018   Page 9 of 13
               coercive, and accusatory questioning, or whether police have
               employed subterfuge in order to induce self-incrimination; the
               degree of police control over the environment in which the
               interrogation takes place, and in particular whether the suspect’s
               freedom of movement is physically restrained or otherwise
               significantly curtailed; and whether the suspect could reasonably
               believe that he has the right to interrupt prolonged questioning by
               leaving the scene.


       Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir. 1996), cert. denied (internal citations

       omitted).


[17]   The crucial question before us is whether Ruiz was “in custody” during the

       interrogation for purposes of Miranda. The State asserts that Ruiz was not in

       custody when he gave his statements, and, thus, not subjected to a custodial

       interrogation that would require Miranda warnings. According to the State, Ruiz

       was not in custody because he was not restrained in any way and was free to

       leave the police station at any time.


[18]   Ruiz contends that he was in custody at the time of the interrogation because,

       under the totality of the circumstances, a reasonable person in his situation

       would believe “there was a restraint of freedom to the degree associated with a

       formal arrest.” Appellee’s Brief at 12. In support of his contention, he maintains

       that he was interrogated by two different police detectives; the second

       detective’s demeanor was “more aggressive,” and the second detective did not

       tell Ruiz that he did not have to speak with him; there was no evidence that

       Ruiz knew the doors he entered at the police station were unlocked; the

       detectives used “accusatory questioning”; the detectives told Ruiz that all the

       Court of Appeals of Indiana | Memorandum Decision 36A01-1712-CR-2999 | July 24, 2018   Page 10 of 13
       evidence pointed to him having committed the crime; and the detectives told

       Ruiz a lie – that the alleged victim had passed a polygraph test. Id.


[19]   The facts of this case are quite similar to those in Luna, where police asked a

       molestation suspect to come to the police station to discuss allegations against

       him. The suspect drove himself to the police station, where he was interviewed

       in an office, behind closed doors, by two officers. The officers told the suspect

       that he was free to leave at any time. After about an hour of interrogation,

       during which the suspect confessed, he was allowed to go home. Our Supreme

       Court concluded, “a person who goes voluntarily for a police interview,

       receives assurances that he is not under arrest, and leaves after the interview is

       complete has not been taken into ‘custody’ by virtue of an energetic

       interrogation so as to necessitate Miranda warnings.” Luna, 788 N.E.2d at 834.


[20]   In Luna, our Supreme Court relied on Oregon v. Mathiason, 429 U.S. 492 (1977).

       In Mathiason, police initiated contact with the defendant who agreed to come to

       the patrol office. Accompanying the officer into a closed room, the defendant

       was told he was suspected of committing a burglary but was not under arrest.

       The police interrogated him rather aggressively and told him (falsely) that his

       fingerprints were found at the scene of the crime. During a half-hour interview,

       the defendant gave a recorded confession. He left the police station after the

       interview. The Supreme Court held that Mathiason was not in custody or

       otherwise deprived of his freedom of action in any significant way. Specifically:


               Such a noncustodial situation is not converted to one in which
               Miranda applies simply because a reviewing court concludes that
       Court of Appeals of Indiana | Memorandum Decision 36A01-1712-CR-2999 | July 24, 2018   Page 11 of 13
               . . . the questioning took place in a “coercive environment.” Any
               interview of one suspected of a crime by a police officer will have
               coercive aspects to it, simply by virtue of the fact that the police
               officer is part of a law enforcement system which may ultimately
               cause the suspect to be charged with a crime. But police officers
               are not required to administer Miranda warnings to everyone
               whom they question. Nor is the requirement of warnings to be
               imposed simply because the questioning takes place in the station
               house, or because the questioned person is one whom the police
               suspect. Miranda warnings are required only where there has
               been such a restriction on a person’s freedom as to render him
               “in custody.” It was that sort of coercive environment to which
               Miranda by its terms was made applicable, and to which it is
               limited.


       Id. at 495.


[21]   Here, Ruiz voluntarily travelled to the police station. He was taken to an

       interview room in the administrative part of the station, and he was seated near

       the door. At no point was Ruiz restrained. Before the interview began,

       Detective O’Brien told Ruiz that he did not have to talk to him, and that he

       could “get up and walk out [the] the door” to the interview room at any time.

       Transcript Vol. 1 at 215. When Detective Munson entered the room, he was

       wearing plain clothes, and he did not have his firearm. The entire interview

       lasted less than one hour; Ruiz was not arrested during or immediately after the

       interview; and Ruiz was allowed to leave the police station on his own. Ruiz

       makes much of the facts that he was a suspect, that he was interviewed by two

       detectives at the same time, that Detective Munson stated (falsely) that the

       victim had passed a polygraph test, and that Detective Munson’s interview style


       Court of Appeals of Indiana | Memorandum Decision 36A01-1712-CR-2999 | July 24, 2018   Page 12 of 13
       might have been “more aggressive” (Appellee’s Brief at 12); however, these

       factors do not, under these circumstances, render the interview a custodial

       interrogation requiring Miranda warnings. See Mathiason, 429 U.S. at 495-96

       (noncustodial situation not converted to one where Miranda applies simply

       because, absent formal arrest or restraint on freedom of movement, questioning

       took place in a coercive environment, and, officer’s false statement about

       finding defendant’s fingerprints at the scene had “nothing to do with whether

       [defendant] was in custody for purposes of Miranda); see also Luna, 788 N.E.2d

       at 834 (requirement of Miranda warnings is not to be imposed simply because

       the questioned person is one whom the police suspect).


[22]   We conclude that based on the totality of the circumstances, a reasonable

       person in circumstances similar to those Ruiz experienced would believe he or

       she was free to leave. Thus, because Ruiz was not in custody when he was

       interrogated by the detectives, Miranda did not apply. The trial court’s grant of

       Ruiz’s motion to suppress his statements to the detectives was contrary to law.


[23]   The trial court erred in granting Ruiz’s motion to suppress his statements to the

       detectives. We reverse and remand for further proceedings.


       Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 36A01-1712-CR-2999 | July 24, 2018   Page 13 of 13
