                                                                           FILED
                                                                       Nov 16 2018, 9:18 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Heather M. Schuh-Ogle                                      Curtis T. Hill, Jr.
Thomasson, Thomasson, Long &                               Attorney General of Indiana
Guthrie, P.C.                                              James B. Martin
Columbus, Indiana                                          Deputy Attorney General
                                                           Indianapolis, Indiana


                                             IN THE
      COURT OF APPEALS OF INDIANA

Ashley Reid,                                               November 16, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-493
        v.                                                 Appeal from the Bartholomew
                                                           Superior Court
State of Indiana,                                          The Honorable Kathleen Tighe
Appellee-Plaintiff.                                        Coriden, Judge
                                                           Trial Court Cause No.
                                                           03D02-1702-CM-902



Brown, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018                           Page 1 of 22
[1]   In this interlocutory appeal, Ashley Reid appeals the trial court’s order denying

      her motion to suppress evidence. Reid raises two issues which we consolidate

      and restate as whether the trial court erred in denying her motion to suppress.

      We affirm and remand for further proceedings.1


                                         Facts and Procedural History

[2]   On February 15, 2017, the State charged Reid with: Count I, operating a

      vehicle while intoxicated endangering a person as a class A misdemeanor; and

      Count II, operating a vehicle with an ACE of .15 or more as a class A

      misdemeanor.


[3]   On October 30, 2017, Reid filed a motion to suppress all oral and written

      communications, confessions, statements, or admissions alleged to have been

      made by her, as well as any test results arising from a July 29, 2016 incident. It

      stated in part that Officer James Paris of the Columbus Police Department

      responded to a report of a possible intoxicated driver at a West Ridge residence,

      that “[u]pon arriving, Officer Paris immediately began questioning Ms. Reid

      and giving her directives” and “subjected her to coercive and accusatory

      questioning,” and that, without Reid’s statements, he “lacked probable cause to

      request field sobriety tests, a chemical test, or a warrant for a blood draw.”

      Appellant’s Appendix Volume II at 34. It also stated:




      1
        We heard oral argument at the University of Evansville on November 1, 2018. We thank the entire
      University administration, faculty, and students, for their gracious hospitality. We also thank counsel for
      their informative and engaging oral advocacy.

      Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018                               Page 2 of 22
               There was little to no elapsed time between the unlawful search
               and seizure and the acquisition of the evidence, and there were
               no intervening circumstances. After questioning [Reid] with no
               advisement of her Miranda rights, Officer Paris immediately
               ordered [Reid] to perform field sobriety tests, and immediately
               following those, read her the “implied consent” law. When she
               declined, he immediately requested a warrant.


      Id. at 35.


[4]   On December 4, 2017, the trial court conducted an evidentiary hearing on the

      motion, at which it heard the testimony of Officer Paris and admitted and

      played, as State’s Exhibit 1, his body camera recording from the July 29, 2016

      incident. Officer Paris testified that he was dispatched at 2:09 a.m. “as a

      possible intoxicated driver or disturbed (garbled),” and that:


               I can’t remember exact terminology dispatch used. A caller, a
               Stanley Reid, stated that he had heard a loud noise outside his
               residence, looked outside and saw his wife, [Reid], staggering in
               the driveway. Dispatch relayed that he wasn’t sure what the
               noise was but believed she struck something with her vehicle.[2]


      Transcript at 5-6. He stated that he proceeded to the scene without his lights or

      sirens activated, and saw two women in the driveway along with a vehicle with

      damage to the rear passenger-side bumper and a flat front passenger-side tire

      with its rubber “shredded around the wheel.” Id. at 8. He testified that one of




      2
       Officer Paris’s body camera recording begins with his statement that “we got a call of a possible traffic
      accident up here . . . a vehicle struck another vehicle.” State’s Exhibit 1 at 0:01-0:13.

      Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018                               Page 3 of 22
      the individuals identified herself as Reid3 and that he “[i]mmediately noticed

      that she was intoxicated. She was unsteady on her feet, had blood shot [sic]

      eyes, [and] had a strong odor of alcoholic beverage about her person,” which

      “became stronger as she spoke . . . .” Id. at 6-7. His body camera recording

      indicates that he made contact with the two women, that they stated “that was

      not us” when he informed them of a “call of a possible traffic accident up here .

      . . a vehicle struck another vehicle,” and that, after Reid identified herself, she

      answered affirmatively when asked “is this your vehicle” and “did you just get

      home.” State’s Exhibit 1 at 0:01-0:13, 0:23-0:31.


[5]   When questioned about his subsequent conversation with Reid, Officer Paris

      stated:


                I had her step to the rear of the vehicle where the damage was so
                I could speak to her and then reference the damage.[4] Inquired
                what she had struck with the vehicle, an open ended what did
                you hit I believe was the question. She denied having struck
                anything. I referenced the damage. She said it was old damage
                that it happened at Walmart and that it did not happen, that it
                had been there for some time.




      3
       When asked at the hearing about his interaction with the second woman, Officer Paris stated that “at one
      point she started to approach us as I was trying to talk to [Reid] and I asked her to step back just as an
      officer[] safety issue.” Transcript at 9.
      4
       The body camera recording indicates that, before asking “what did you hit,” Officer Paris stated to Reid
      “walk back here for me please,” and “do me a favor and go ahead and first of all put out your cigarette
      please. Thank you.” State’s Exhibit 1 at 0:55-1:15.

      Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018                            Page 4 of 22
      Transcript at 8. He indicated that he did not believe Reid’s explanation and

      stated “it’s a plastic type bumper and there was a hole in it, it was cracked,

      dented in, and it appeared to be extremely fresh. It was clean, no dust or dirt on

      it.” Id. at 7. He stated “[o]h yes absolutely I can” when asked if, based on his

      experience, he was confident in his ability to look “at damage to tell if it’s fresh

      or old . . . .” Id. When asked if Reid had stated she had driven the vehicle,

      Officer Paris answered affirmatively and testified:


              After we had a discussion about the damage on the rear bumper .
              . . I had her kind of step around to the side and pointed out the
              damage to the tire and I said how did this happen? Oh that did
              happen tonight I struck a curb. She said struck a curb either at or
              near Circle K and that was my first indication that she had been
              the operator of the vehicle when she said I struck a curb.

      Id. at 9.


[6]   Regarding the damage, the body camera recording reveals the following

      conversation between Reid and Officer Paris:


              Reid: It’s been there.

              Officer Paris: That’s been there? No ma’am. That’s some
              brand-new damage right there.

                                                    *****

              Officer Paris: I’ve done this job for a long time –

              Reid: That’s fine.

              Officer Paris: Okay, and I know when I’m being lied to.

              Reid: Okay.

      Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018       Page 5 of 22
        Officer Paris: Okay. I’m being lied to. This vehicle has struck
        something.

        Reid: No, that’s been like that.

        Officer Paris: And this vehicle has struck something recently.
        Okay. Where have you been tonight?

        Reid: Went uptown.

        Officer Paris: Uptown? Uptown Columbus?

        Reid: To the Circle-K and then I went to the bar . . . . Yeah, but
        I didn’t hit anything.

        Officer Paris: When did that accident happen?

        Reid: Sir, this happened –

        Officer Paris: When did it happen?

        Reid: – a while back.

        Officer Paris: Okay. What’s a while back?

        Reid: About a month ago.

        Officer Paris: About a month ago, okay. Was it reported?

        Reid: I don’t think so.

        Officer Paris: You don’t think so?

        Reid: No. I don’t – I didn’t.

        Officer Paris: I’m getting a whole lot of I don’t think so’s and –

        Reid: That’s fine.

        Officer Paris: No, it’s not fine. It’s – it’s impeding my
        investigation, okay.


Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018         Page 6 of 22
        Reid: Okay. That’s been like that. And I didn’t – it happened at
        Wal-Mart after I got off work.

State’s Exhibit 1 at 1:11-2:49. After some conversation in which Officer Paris

indicated that he had received a “call of a possible traffic accident,” Reid asked

“where,” he responded “here,” she stated, “no I didn’t do anything, sir,” he

inquired “did you just drive this vehicle here,” and the following exchange

occurred:


        Reid: I drove it here and drove into the driveway.

        Officer Paris: Okay.

        Reid: Yeah. I did not lie.

        Officer Paris: How long ago did the damage happen to your
        front tire?

        Reid: It’s been about – the front damage? I drove like that here.
        It happened earlier this evening.

        Officer Paris: Oh, that happened earlier this evening –

        Reid: Yeah, that did, yes, and I’m not going to lie about that.

        Officer Paris: Where did that happen at?

        Reid: That happened earlier.

        Officer Paris: Where did that happen at?

        Reid: Circle-K.

                                               ****

        Officer Paris: So if I go and have them pull video tape it will
        show you hitting something over there?


Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018        Page 7 of 22
              Reid: Probably a median. And then I left it and I asked for
              help.

                                                     ****

              Reid: The median earlier and I came home on that tire. Yes.

      Id. at 3:02-4:42. The body camera recording also reveals that Reid answered

      “about half an hour ago” when asked “how long ago did you get here,” and

      “not since I’ve been home sir” when asked “have you consumed any alcohol[ic]

      beverages since you’ve been home,” at which point Officer Paris asked Reid to

      leave the driveway and step in front of his patrol vehicle. Id. at 5:10-5:30.


[7]   Officer Paris further testified that he proceeded to perform standardized field

      sobriety testing and Reid failed three separate tests, that “he read her Indiana

      Implied Consent” after she “tested a .169 on a portable breath test,” and that

      she refused to submit to a chemical test. Transcript at 10-11. He testified that

      he placed her in handcuffs and transported her to Columbus Regional Hospital,

      and that he then filed for a search warrant which was granted. When asked to

      estimate how long the interaction lasted, “from the time you arrived at the

      residence to the time she refuses the chemical test,” he responded “[u]ntil she

      actually refused the test probably no more than ten (10) minutes, twelve (12)

      minutes maybe.”5 Id. at 11.




      5
       The body camera recording reveals that approximately sixteen and one-half minutes passed between Officer
      Paris’s first statements to Reid and her refusal to take a chemical blood alcohol test.

      Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018                         Page 8 of 22
[8]   During cross-examination, in response to whether Reid was free to leave during

      his questioning of her, Officer Paris testified:


              It was an investigatory stop up to the point that she had admitted
              that she was driving the vehicle and it was obvious to me that she
              was intoxicated, if she would have walked away, frustrating as it
              would have been, she would have been free to walk away, yes[.]


      Id. at 14. When asked if Reid was free to leave “before or after you explained . .

      . that her saying that I don’t know or I don’t think so was impeding your

      investigation,” Officer Paris stated in part:


              [W]hen I had developed that or had determined that she had
              driven the vehicle she made [sic] privy [sic] made the statement
              that she drove to the residence and that she drove the vehicle
              during when she had damaged the tire it was at that point that I
              would say that she was not free to go.


      Id. at 15.


[9]   During recross-examination, Reid’s counsel asked “[s]o there’s no actual time

      frame given for when it happened, isn’t that true, earlier could be a variety of

      things,” the prosecutor objected, and the following exchange occurred:


              [Prosecutor]: I don’t see what this has to do with the question
              here is whether [Reid] was in custody. It doesn’t have nothing to
              do with the time frame. The only thing we’re talking about is
              was she in custody and therefore do her statements come in. I
              don’t think the actual pin point of the officer opinion is relevant
              at least not at this hearing.




      Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018       Page 9 of 22
               [Reid’s Counsel]: Your honor, I think the probable cause
               affidavit indicates that she said she was driving and had been
               drinking and I think that when she was driving is highly relevant
               and when she had been drinking or whether she had been
               drinking is highly relevant to whether the probable cause affidavit
               is valid.

               [Prosecutor]: Perhaps but that’s what’s being questioned.
               You’re not questioning the probable cause affidavit. The
               probable cause has already been found. We’re questioning the
               Motion to Suppress which [sic] was she in custody and therefore
               was [sic] her statements come in since she was not read Miranda.

               [Reid’s Counsel]: All of the statements are relevant. He’s talking
               about her having said she drove earlier in the evening, not giving
               a specific time of which she was driving for him to say.

               [The court]: A specific time as to when the accident took place is
               not relevant to this issue.


       Id. at 20-21. The parties submitted briefs after the hearing, and the trial court

       issued an order on January 8, 2018, denying the motion to suppress. Reid

       sought the trial court’s permission to seek an interlocutory appeal and this

       Court accepted the same.


                                                    Discussion

[10]   The issue is whether the trial court erred in denying Reid’s motion to suppress.

       The admission of evidence is entrusted to the trial court’s sound discretion.

       Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). ‘‘We review a trial court’s

       denial of a defendant’s motion to suppress deferentially, construing conflicting

       evidence in the light most favorable to the ruling, but we will also consider any

       substantial and uncontested evidence favorable to the defendant.” Id. “We
       Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018     Page 10 of 22
       defer to the trial court’s findings of fact unless they are clearly erroneous, and

       we will not reweigh the evidence.” Id. “When the trial court’s denial of a

       defendant’s motion to suppress concerns the constitutionality of a search or

       seizure, however, it presents a question of law, and we address that question de

       novo.” Id. 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 the trial court enunciated.

       Randall v. State, 101 N.E.3d 831, 836 (Ind. Ct. App. 2018) (citing Scott v. State,

       883 N.E.2d 147, 152 (Ind. Ct. App. 2008)), trans. denied.


[11]   Reid argues that Officer Paris detained her and conducted a custodial

       interrogation of her at her residence without first advising her of her Miranda

       rights in violation of the Fourth and Fifth Amendments of the United States

       Constitution and Article 1, Section 11 of the Indiana Constitution. 6


       A. Fourth Amendment


[12]   The Fourth Amendment provides:


                The right of the people to be secure in their persons, houses,
                papers, and effects, against unreasonable searches and seizures,



       6
         Although Reid mentions Article 1, Section 14 of the Indiana Constitution in her brief, see Appellant’s Brief
       at 13-15, 19, and asserts in her reply brief that she has the “same rights under Article 1, Section 14 . . . that
       she does under the Fifth Amendment,” contending, without citation to authority, that she “is still entitled
       [sic] its protections even without raising a separate argument under it,” Appellant’s Reply Brief at 6, she does
       not develop any separate argument under that provision. Therefore, we analyze and resolve her claim under
       the Fifth Amendment. See Myers v. State, 839 N.E.2d 1154, 1158 (Ind. 2005) (“Where a party, though citing
       Indiana constitutional authority, presents no separate argument specifically treating and analyzing a claim
       under the Indiana Constitution distinct from its federal counterpart, we resolve the party’s claim ‘on the basis
       of federal constitutional doctrine and express no opinion as to what, if any, differences there may be’ under
       the Indiana Constitution.” (quoting Williams v. State, 690 N.E.2d 162, 167 (Ind. 1997))).

       Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018                               Page 11 of 22
               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.


       U.S. CONST. amend. IV. Encounters between law enforcement officers and

       public citizens take a variety of forms, some of which do not implicate the

       protections of the Fourth Amendment and some of which do. Clark v. State,

       994 N.E.2d 252, 261 (Ind. 2013) (citing Finger v. State, 799 N.E.2d 528, 532

       (Ind. 2003)). Consensual encounters in which a citizen voluntarily interacts

       with an officer do not compel Fourth Amendment analysis. Id. Nonconsensual

       encounters do, though, and typically are viewed in two levels of detention: a

       full arrest lasting longer than a short period of time, or a brief investigative stop.

       Id.


[13]   An arrest or detention that lasts for more than a short period of time must be

       justified by probable cause. Powell v. State, 912 N.E.2d 853, 859 (Ind. Ct. App.

       2009) (citing State v. Calmes, 894 N.E.2d 199, 202 (Ind. Ct. App. 2008)).

       Pursuant to Fourth Amendment jurisprudence under Terry v. Ohio, 392 U.S. 1,

       27, 88 S. Ct. 1868, 1883 (1968), the police may, without a warrant or probable

       cause, briefly detain an individual for investigatory purposes if, based upon

       specific and articulable facts, the officer has a reasonable suspicion of criminal

       activity. Rutledge v. State, 28 N.E.3d 281, 290 (Ind. Ct. App. 2015). See also

       Jackson v. State, 669 N.E.2d 744, 747 (Ind. Ct. App. 1996) (“In Terry, the

       Supreme Court held that ‘where a police officer observes unusual conduct

       which leads him reasonably to conclude in light of his experience that criminal

       Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018        Page 12 of 22
       activity may be afoot’ the officer may briefly stop the suspicious person and

       make ‘reasonable inquiries’ to confirm or dispel those suspicions.”) (quoting

       Terry, 392 U.S. at 30, 88 S. Ct. at 1884). Reasonable suspicion exists if the facts

       known to the officer at the moment of the stop, together with the reasonable

       inferences arising from such facts, would cause an ordinarily prudent person to

       believe that criminal activity has occurred or is about to occur. Powell v. State,

       841 N.E.2d 1165, 1167 (Ind. Ct. App. 2006). In judging the reasonableness of

       investigatory stops under Terry, courts must strike “a balance between the

       public interest and the individual’s right to personal security free from arbitrary

       interference by law [enforcement] officers.” Carter v. State, 692 N.E.2d 464, 466

       (Ind. Ct. App. 1997) (quoting Brown v. Texas, 443 U.S. 47, 50, 99 S. Ct. 2637,

       2640 (1979)). When balancing these competing interests in different factual

       contexts, a central concern is “that an individual’s reasonable expectation of

       privacy is not subject to arbitrary invasions solely at the unfettered discretion of

       officers in the field.” Id. (citing Brown, 443 U.S. at 51, 99 S. Ct. at 2640). “No

       unreasonable search occurs when police enter areas of curtilage impliedly open

       to use by the public to conduct legitimate business.” Hardister v. State, 849

       N.E.2d 563, 570 (Ind. 2006). Legitimate business includes a “knock and talk”

       where police use normal routes of ingress and egress from a residence to make

       appropriate inquiries of the occupants. Id.


[14]   In order to pass constitutional muster, reasonable suspicion must be comprised

       of more than an officer’s general “hunches” or unparticularized suspicions.

       Terry, 392 U.S. at 27, 88 S. Ct. at 1883. The United States Supreme Court has

       Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018      Page 13 of 22
       directed reviewing courts to “make reasonable-suspicion determinations by

       look[ing] at the ‘totality of the circumstances’ of each case to see whether the

       detaining officer has a ‘particularized and objective basis’ for suspecting legal

       wrongdoing.” State v. Burlington, 802 N.E.2d 435, 438 (Ind. 2004) (quoting

       United States v. Arvizu, 534 U.S. 266, 273-274, 122 S. Ct. 744, 750-751 (2002)

       (quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S. Ct. 690 (1981))).


[15]   Reid argues that she was detained without reasonable suspicion supported by

       articulable facts that criminal activity could be afoot. She contends that her

       statements did not clearly establish the time when she had been the driver of the

       vehicle, but rather that she had driven at some point during the day, and that

       Officer Paris responded to a call that “may have indicated a criminal act

       (possible impaired driver), but also may have only been a traffic accident or a

       disturbance.” Appellant’s Brief at 17. She further argues that she was not free

       to leave her encounter with Officer Paris and no reasonable person would have

       believed she was permitted to leave. She asserts that Officer Paris “immediately

       began interrogating [her] upon his arrival”; gave her “specific directives,

       including where to stand and to put out her cigarette”; “right away asked her

       what she had hit with her vehicle”; and “isolated her from a friend at the

       scene.” Id. at 7. She contends he subjected her to “coercive and accusatory

       questioning” when he “accused her of striking something with her vehicle,”

       “accused her of lying to him when she responded that the damage he was

       referring to was not new,” “continued to argue . . . and insist that the damage




       Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018      Page 14 of 22
       had occurred,” and “admonished her for not being more forthcoming and for

       impeding his investigation.” Id.


[16]   The State responds by arguing that Officer Paris’s interaction with Reid began

       as a consensual encounter and evolved into an investigative stop under Terry

       when he recognized her intoxication and observed fresh damage to the vehicle

       in her driveway. It argues Officer Paris had “accumulating observations” that

       provided reasonable suspicion regardless of when the interaction changed from

       a consensual encounter into an investigative stop. Appellee’s Brief at 12. It

       contends articulable facts, which “provided ample reasonable suspicion that

       [Reid] may have driven the vehicle while intoxicated and had struck

       something,” support an investigation under Terry. Id. at 14.


[17]   The record reveals that Officer Paris responded to a call by Reid’s husband,

       who had heard “a loud noise outside” his residence, looked outside to see Reid

       “staggering in the driveway,” and believed she had “struck something with her

       vehicle.” Transcript at 5-6. It also reveals that upon his arrival Officer Paris

       observed a vehicle with damage to the rear passenger-side bumper and the front

       passenger-side tire and that Reid answered affirmatively when asked “did you

       just get home.” State’s Exhibit 1 at 0:25-0:31. He “[i]mmediately noticed that

       [Reid] was intoxicated” and that she was “unsteady on her feet,” had “blood

       shot [sic] eyes,” and had a “strong odor of alcoholic beverage about her person”

       which “became stronger as she spoke.” Transcript at 6-7. We also note that

       Officer Paris did not believe Reid’s answers about the damage, given it

       “appeared to be extremely fresh.” Id. at 8. See Finger, 799 N.E.2d at 534

       Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018     Page 15 of 22
       (“Deceptive responses may contribute to reasonable suspicion of criminal

       activity.”). Under these circumstances, we conclude that the facts known to

       Officer Paris together with the reasonable inferences arising from such facts

       would cause an ordinarily prudent person to believe that criminal activity may

       be afoot. Accordingly, Reid’s Fourth Amendment rights were not violated.


       B. Fifth Amendment


[18]   In Miranda v. Arizona, 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.” 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (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). Further, “‘[b]ecause the 5th [A]mendment right against self-

       incrimination does not apply to the obtaining of noncommunicative physical

       evidence,’ such rights cannot be violated when the State acquires a chemical

       breath test from a suspect without first giving that suspect the assistance of

       counsel.” Cohee v. State, 945 N.E.2d 748, 752 (Ind. Ct. App. 2011) (quoting

       Davis v. State, 367 N.E.2d 1163, 1166-1167 (Ind. Ct. App. 1977)), trans. denied.

       See also State v. McCaa, 963 N.E.2d 24, 30 (Ind. Ct. App. 2012) (“In . . . a case

       Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018      Page 16 of 22
       [where] the officer [has a reasonable suspicion that criminal activity may be

       afoot, he] may briefly detain [a suspect] to conduct a limited ‘non-invasive’

       search such as a ‘pat down’ for weapons, a license and registration check, or

       field sobriety tests.”) (emphasis added) (quoting Snyder v. State, 538 N.E.2d 961,

       963 (Ind. Ct. App. 1989), trans. denied), trans. denied.


[19]   The trigger to require Miranda rights advisement is custodial interrogation.

       State v. Brown, 70 N.E.3d 331, 335 (Ind. 2017) (citing White v. State, 772 N.E.2d

       408, 412 (Ind. 2002)). Questioning an individual the police suspect of a crime

       does not inherently render the questioning custodial interrogation. See Luna v.

       State, 788 N.E.2d 832, 834 (Ind. 2003) (“Nor is the requirement of warnings to

       be imposed simply because . . . the questioned person is one whom the police

       suspect.” (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711 (1977)).

       Courts look to the “totality of the circumstances” to determine whether a

       person was in custody. Brown, 70 N.E.3d at 335 (quoting Wright v. State, 766

       N.E.2d 1223, 1229 (Ind. Ct. App. 2002)). 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 upon the

       subjective views of the interrogating officers or the suspect.”), trans. denied. The

       Seventh Circuit has compiled the following helpful list of factors identified by

       courts 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 coercive,

       and accusatory questioning, or whether police have employed subterfuge in

       Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018      Page 17 of 22
       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. Gauvin v.

       State, 878 N.E.2d 515, 521 (Ind. Ct. App. 2007) (quoting Sprosty v. Buchler, 79

       F.3d 635, 641 (7th Cir. 1996), cert. denied, 519 U.S. 854, 117 S. Ct. 150 (1996)),

       trans. denied. 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 (quoting Stansbury v. California, 511 U.S. 318,

       322, 114 S. Ct. 1526, 1529 (1994)). See also Luna, 788 N.E.2d at 833 (“When

       determining whether a person was in custody or deprived of his freedom, 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.”) (internal

       citations omitted) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct.

       3517, 3520 (1983)).


[20]   Reid argues that Officer Paris conducted an interrogation of her without first

       advising her of her rights under the Fifth Amendment. She contends that he

       “then used the information he obtained from questioning [her], on her property

       and without an advisement of rights, to order her to submit to field sobriety

       tests, a portable breath test, and to obtain a warrant for a certified breath test

       when she refused to consent to one.” Appellant’s Brief at 8. She asserts in her

       reply brief that a “reasonable person in [her] circumstances would believe she


       Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018       Page 18 of 22
       was not free to leave.” Appellant’s Reply Brief at 5-6. The State argues that

       Reid was not in custody throughout Officer Paris’s questions while they stood

       in her driveway.


[21]   The evidence shows that, when Officer Paris arrived, Reid was standing outside

       a residence on a driveway by a vehicle with damage. Officer Paris was

       dispatched because Reid’s husband believed she had “struck something with

       her vehicle.” Transcript at 6. Officer Paris questioned Reid about the damage

       to her vehicle and did not indicate in his questions that she must remain at the

       scene. Based on our review of the record and the totality of the circumstances,

       and in light of the nature of the questioning and the relative degree of police

       control over the environment in which it was conducted, we cannot say that

       there had been a formal arrest or restraint on Reid’s freedom of movement of

       the degree associated with a formal arrest at the time she made her statements.

       See State v. Hicks, 882 N.E.2d 238, 242 (Ind. Ct. App. 2008) (finding that a

       defendant, who was questioned about a vehicle stopped on railroad tracks, was

       not in custody for purposes of Miranda and noting that the police officer “in no

       way restrained [her] movements or used coercive tactics, and merely asked her

       who had been driving the vehicle”). Accordingly, we find Reid’s Miranda rights

       were not violated.


       C. Article 1, Section 11


[22]   Article 1, Section 11 of the Indiana Constitution provides:




       Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018     Page 19 of 22
               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable search or seizure, shall
               not be violated; and no warrant shall issue, but upon probable
               cause, supported by oath or affirmation, and particularly
               describing the place to be searched, and the person or thing to be
               seized.


[23]   Although its text mirrors the federal Fourth Amendment, we interpret Article 1,

       Section 11 of our Indiana Constitution separately and independently. Robinson,

       5 N.E.3d at 368. “When a defendant raises a Section 11 claim, the State must

       show the police conduct ‘was reasonable under the totality of the

       circumstances.’” Id. (quoting State v. Washington, 898 N.E.2d 1200, 1205-1206

       (Ind. 2008), reh’g denied). “The focus of the exclusionary rule under the Indiana

       Constitution is the reasonableness of police conduct.” Hardister, 849 N.E.2d at

       573. “We consider three factors when evaluating reasonableness: ‘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.’” Robinson, 5

       N.E.3d at 368 (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)).


[24]   Reid argues, in essence, that the degree of concern, suspicion, or knowledge

       that a violation had occurred was non-existent because, as she contends, Officer

       Paris had little reason to believe he was responding to a criminal act and no

       reason to believe that she had violated any law. She contends that the extent of

       law enforcement needs was negligible because “it would surely invite

       unreasonableness in administration” to allow law enforcement officers to “have


       Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018     Page 20 of 22
       reasonable suspicion . . . based on every report of a person staggering in their

       driveway, or even intoxicated in their driveway,” and to further permit officers

       “upon investigation of an intoxicated person at his or her residence . . . to point

       to any damage to that person’s vehicle as ‘reasonable suspicion’ that the crime

       of operating a vehicle while intoxicated had occurred.” Appellant’s Brief at 17.

       Reid also argues that the degree of intrusion was substantial because Officer

       Paris “confronted” her while she was at her home and “immediately began

       asking her accusatory questions, accusing her of lying to him, ordering her

       where to stand and to put out her cigarette, and reproaching her for impeding

       his investigation.” Id. at 16. The State argues that law enforcement needs were

       high given Reid’s statements and the reasonable inferences any ordinary person

       would draw from the situation and contends that Officer Paris’s questioning

       and brief investigation in the driveway were reasonable and not significantly

       intrusive based on the circumstances. Appellee’s Brief at 19.


[25]   After he proceeded to the scene without his lights or sirens activated, Officer

       Paris saw two women in the driveway and observed, also in the driveway,

       Reid’s damaged vehicle. He noticed that Reid, who indicated that she just

       arrived at home, was intoxicated and unsteady on her feet, had bloodshot eyes,

       and had a strong odor of an alcoholic beverage about her person that became

       stronger as she spoke. The degree of concern, suspicion, or knowledge that a

       violation had occurred was high. We also observe that the degree of intrusion

       here was minimal: in responding to a call to dispatch from Reid’s husband,

       Officer Paris approached a driveway to encounter a vehicle with damage to the


       Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018     Page 21 of 22
       rear passenger-side bumper and a flat front passenger-side tire which had its

       rubber “shredded around the wheel,” Transcript at 8, and to ask questions of

       Reid, who identified herself and answered affirmatively when asked “is this

       your vehicle” and “did you just get home.” State’s Exhibit 1 at 0:23-0:31.


[26]   As for the extent of law enforcement needs, we note the Indiana Supreme Court

       has observed that “few Hoosiers would dispute the heartbreaking effects of

       drunk driving in our state” and that “law enforcement has a strong interest in

       preventing . . . accidents” caused by alcohol-impaired driving. Robinson, 5

       N.E.3d at 368. Under the totality of the circumstances, we conclude that

       Officer Paris’s conduct did not violate Reid’s rights under Article 1, Section 11

       of the Indiana Constitution.


                                                    Conclusion

[27]   For the foregoing reasons, we affirm the denial of Reid’s motion to suppress.


[28]   Affirmed and remanded for further proceedings.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-493 | November 16, 2018    Page 22 of 22
