                                                                FILED
                                                            Oct 03 2018, 3:47 pm

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court




                          IN THE

  Indiana Supreme Court
            Supreme Court Case No. 18S-CR-488

                      Monica Dycus
                  Appellant (Defendant below),

                               –v–

                     State of Indiana
                    Appellee (Plaintiff below).


        Argued: April 24, 2018 | Decided: October 3, 2018

Appeal from the Marion Superior Court, No. 49G12-1601-CM-1053
              The Honorable David J. Certo, Judge

   On Petition to Transfer from the Indiana Court of Appeals,
                     No. 49A05-1705-CR-978




                   Opinion by Justice David
Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.
David, Justice.

   Indiana’s Constitution affords its citizens certain rights, including the
right to counsel through all stages of a prosecution. That right entitles an
accused to consult with counsel while in police custody. In Pirtle v. State,
our Court relied on our State Constitution to require an advisement of
rights prior to police obtaining consent to a search from a person in
custody. So far, that requirement has been understood to apply only to
searches of homes and vehicles. Field sobriety tests, chemical breath tests,
blood draws, and cheek swabs have all been found to be searches not
requiring an additional advisement of rights prior to consent. Here, we
address whether our Pirtle requirement extends to Drug Recognition
Exams (“DRE”); in other words, whether an advisement is necessary
before police can obtain a person’s valid consent to a DRE. We find that
no advisement is required. A DRE is not the type of search that calls for a
Pirtle advisement.


Facts and Procedural History
   On January 8, 2016, Indianapolis Metropolitan Police Department
(“IMPD”) officers responded to a 911 call about a dispute on the road.
Monica Dycus had allegedly been following her ex-boyfriend, El-hadj
Barry, who was picking up a female friend at her school. Barry’s friend
called 911 because Dycus was tailgating Barry’s vehicle, swerving
between lanes, and pulling up next to them at stoplights to shout
obscenities.

   When IMPD Officer Christopher Cooper (“Officer Cooper”) arrived on
the scene, he saw the two vehicles stopped at a red light. Dycus had one
foot out of her vehicle and was observed yelling at the car in front of her.
Officer Cooper approached Dycus and asked for identification. He also
spoke with Barry to find out what had happened.

  After checking Barry and Dycus’s identification, Officer Cooper told
Barry that he could leave. Officer Cooper continued to detain Dycus
because he suspected that she was driving with a suspended license.
While speaking with Dycus, Officer Cooper noticed an odor of marijuana


Indiana Supreme Court | Case No. 18S-CR-488 | October 3, 2018      Page 2 of 11
coming from Dycus’s breath. Officer Cooper called for back up from
Officer Christopher Winter (“Officer Winter”), an IMPD officer who was
certified to conduct DREs. Officer Cooper continued to question Dycus as
they waited for Officer Winter’s arrival. In the course of that questioning,
Dycus admitted to Officer Cooper that she had smoked marijuana with
her mother “about an hour” prior to the encounter.

   When Officer Winter arrived, Dycus was asked to submit to various
field sobriety tests. She passed the horizontal gaze nystagmus test, which
indicated that she was not under the influence of alcohol. However,
Dycus failed the walk-and-turn and the one-legged stand tests. Based on
the field sobriety test results, Officer Winter believed that Dycus was
intoxicated. He offered to administer a certified breath test, which would
test for the presence of alcohol. Dycus consented.

   Officers transported Dycus to an IMPD office located approximately
four miles from the initial stop to conduct the test. The results came back
negative for the presence of alcohol in Dycus’s system. However, while
conducting the test, Officer Winter noticed a green, leafy substance in
Dycus’s mouth and “a green streak going down her tongue.” (Tr. Vol. 2,
p. 130). These signs were indicative of marijuana consumption.

   Officer Winter then offered Dycus a DRE. He explained that he wanted
her to submit to a DRE because her signs of impairment were not
consistent with negative alcohol results. Dycus again consented. The
exam took approximately thirty minutes to complete and involved a
variety of measurements and observations that were assessed in a seven-
category evaluation matrix, known as a “drug symptom matrix.” After
entering all observations and results of Dycus’s DRE into the “drug
symptom matrix,” Officer Winter determined that Dycus was under the
influence of marijuana.

   Dycus consented to a blood draw, to be administered at Eskenazi
Hospital. At the hospital, two vials of blood were obtained from Dycus,
which were eventually sent for testing to National Medical Services, an
accredited laboratory located in Pennsylvania. The lab results revealed
that Dycus’s blood tested positive for Delta-9 THC, an active metabolite of
marijuana with psychoactive effects.


Indiana Supreme Court | Case No. 18S-CR-488 | October 3, 2018      Page 3 of 11
   The State charged Dycus with Count I, Class A misdemeanor Operating
a Vehicle While Intoxicated. Later, the State added Count II, Class C
misdemeanor Operating a Vehicle with a Schedule I or II Controlled
Substance or its Metabolite in the Body. At trial, Dycus objected to the
admission of evidence regarding the DRE, arguing that she should have
been given a Pirtle advisement before being asked if she consented to the
exam. Dycus also argued that the admission of the chain of custody forms
and shipping documents for her blood samples violated her constitutional
right to confrontation. The trial court rejected both objections and Dycus
was found guilty as charged. At sentencing, the trial court vacated Count
II. Dycus was then sentenced to 365 days for the remaining count, with
361 days suspended to probation.

   Dycus appealed, making the same arguments she made at trial: (1) that
the officer’s testimony regarding the DRE was inadmissible because she
should have been given a Pirtle advisement prior to being asked to
consent to the exam, and (2) that the admission of chain custody forms for
toxicology documents violated her right to confrontation under the United
States Constitution. The Court of Appeals found that there was no
confrontation clause violation, but reversed Dycus’s conviction because a
Pirtle advisement had not been given prior to the DRE consent. Dycus v.
State, 90 N.E.3d 1215, 1220-26 (Ind. Ct. App. 2017).

  The State sought transfer, which we now grant, thereby vacating the
Court of Appeals’ opinion. Ind. App. Rule 58(A).


Standard of Review
  A trial court has broad discretion in ruling on admissibility of evidence.
Tuner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). We will ordinarily
disturb a trial court’s admissibility rulings only where it has abused its
discretion. Id. A trial court abuses its discretion if its decision is clearly
against the logic and effect of the facts and circumstances before the court
or if it misapplies the law. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).
However, where, as here, a constitutional violation is alleged, the proper




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standard of appellate review is de novo. Speers v. State, 999 N.E.2d 850,
852 (Ind. 2013), cert. denied, 134 S.Ct. 2299 (2014).


Discussion and Decision
  Today, we are asked to decide whether, prior to obtaining consent to a
DRE, police must advise a person in custody of her right to consult with
counsel—a question that is grounded in protections offered by our State
Constitution.

    The Fourth Amendment to the United States Constitution guarantees
“[t]he right of the people to be secure in their persons, houses, papers, and
effects” from unreasonable searches and seizures. U.S. Const. amend. IV.
It requires police to obtain a search warrant from a neutral, detached
magistrate prior to undertaking a search of either a person or private
property. Katz v. United States, 389 U.S. 347, 357 (1967). However, that
requirement is subject to “certain carefully drawn and well-delineated
exceptions.” Id. One such exception occurs when a person consents to a
search; in other words, a person’s valid consent eliminates the need for a
search warrant. Our State Constitution offers citizens parallel protections
against unreasonable searches and seizures. For instance, Article 1,
Section 11 provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable search or
seizure, shall not be violated . . . .”

   Although the wording of Section 11 is almost identical to that of the
Fourth Amendment, our State Constitution’s search and seizure clause is
given an independent interpretation and application. Myers v. State, 839
N.E.2d 1146, 1153 (Ind. 2005). In fact, Indiana’s Constitution sometimes
offers broader protections than those offered by the U.S. Constitution.
Conley v. State, 972 N.E.2d 864, 879 (Ind. 2012). Amongst those broader
protections offered by our State Constitution is the requirement that, prior
to obtaining consent to a search, police must explicitly advise a person in
custody of her right to consult with counsel. It is unique to Indiana and
has no federal counterpart. See United States v. LaGrone, 43 F.3d 332, 337
(7th Cir. 1994) (“A person in custody has no federal constitutional right to



Indiana Supreme Court | Case No. 18S-CR-488 | October 3, 2018        Page 5 of 11
consult with an attorney before consenting to a search of his property.
However, the Indiana [C]onstitution does afford such a right.”).

   Whether our advisement requirement extends to a DRE—in other
words, whether police are required to advise a person in custody of her
right to consult with counsel before obtaining consent to perform the
exam—is at issue in this case. The State asks us to affirm the trial court’s
determination that police need not specifically advise a person in custody
of her right to consult with counsel before obtaining consent to a DRE.
Dycus, on the other hand, argues that the Court of Appeals correctly held
that without such advisement, evidence obtained through a DRE is
inadmissible. We agree with the State and find that a Pirtle warning, as
such advisement has come to be known, is not required to obtain valid
consent to a DRE from a person in custody.

   Pirtle v. State, (1975) 263 Ind. 16, 323 N.E.2d 634, is the seminal case for
Indiana’s law on consent to searches. In that case, the defendant, Robert
E. Pirtle, was taken into custody for possession of a stolen vehicle. Id. at
22, 323 N.E.2d at 637. Police read Pirtle his Miranda rights twice—once in
the squad car and another time at the police station. Id. Pirtle asked for
an attorney upon the second reading of his rights. Id. Later, officers
learned that Pirtle may have been involved in an unrelated homicide. Id.
Approximately twelve hours after Pirtle initially invoked his right to
counsel, two other officers questioned him about the unrelated homicide.
Id. The officers, who were not aware that Pirtle had already invoked his
right to counsel, asked Pirtle to consent to a search of his home. Id. Pirtle
agreed and signed a search waiver. Id. When officers searched Pirtle’s
apartment, they found evidence linking him to the homicide. Id. at 22-23,
323 N.E.2d at 637.

   Pirtle challenged the admission of evidence recovered as a result of the
search. Our Court held that a person in police custody is entitled to the
presence and advice of counsel prior to consenting to a search, and that
the right, if waived, must be explicitly waived. Id. at 29, 323 N.E.2d at 640.
Although our holding in Pirtle is the foundation for requiring that persons
in custody be advised of their right to consult with counsel prior to
consent, Pirtle, on its own, does not resolve our inquiry. After all, Pirtle


Indiana Supreme Court | Case No. 18S-CR-488 | October 3, 2018          Page 6 of 11
involved only the search of an apartment; searches can range widely in
breadth and scope.

   Since Pirtle, we’ve addressed the advisement requirement only a
handful of times. In Larkin v. State, (1979) 271 Ind. 469, 393 N.E.2d 180—
an appeal by Pirtle’s accomplice following a separate trial on the same
charges—we expressly reaffirmed the Pirtle requirement. In Sims v. State,
(1980) 274 Ind. 495, 413 N.E.2d 556, overruled in part on unrelated grounds by
Wright v. State, 658 N.E.2d 563, 570 (Ind. 1995), decided five years after
Pirtle, we cleared up some ambiguity left by our earlier jurisprudence. We
declared that our intention in Pirtle was to “recognize[] the right of those
in custody to have the advice of counsel at the point where a consent to
search is requested . . . .” Id. at 500, 413 N.E.2d at 559. Later, in Sellmer v.
State, 842 N.E.2d 358 (Ind. 2006), we addressed Pirtle’s requirements in the
context of a vehicle search. We found that the defendant was in custody
when she was asked to consent to a search of her vehicle and, as a result,
“she was entitled to a Pirtle advisement . . . .” Id. at 365.

   However, Pirtle, Larkin, Sims, and Sellmer all dealt with searches of
homes or vehicles. In Garcia-Torres v. State, 949 N.E.2d 1229 (Ind. 2011),
for the first time, we addressed consent requirements for a different type
of search: a cheek swab for DNA. It is worth noting that, at the time of
Garcia-Torres, our Court of Appeals had already addressed consent to
searches other than those of a home or a vehicle. In fact, our Court relied
on some of those cases in its Garcia-Torres majority. But we had yet to
weigh in on the extent of Pirtle’s reach beyond searches of homes and
vehicles.

  A threshold question in Garcia-Torres was whether a DNA cheek swab
should be deemed a search for purposes of the Fourth Amendment and
our State Constitution. Id. at 1232. We had already held that fingerprints
were not searches, and that blood tests to check alcohol content were. See
Palmer v. State, 679 N.E.2d 887, 892 (Ind. 1997); see also Schmerber v.
California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Taking the
range of analytical treatment in prior cases as a whole, we determined that
although cheek swabs for DNA have more in common with fingerprints
than they do with chemical breath tests, we could not overlook that penis



Indiana Supreme Court | Case No. 18S-CR-488 | October 3, 2018         Page 7 of 11
swabs for DNA testing had been deemed searches requiring their own
separate probable cause proceedings. Garcia-Torres, 949 N.E.2d at 1237-38.
Accordingly, we found that a DNA cheek swab was also a search. Id.

   As for the central question—whether a Pirtle warning was required
prior to consent—we noted that “Pirtle and the ensuing cases . . . applied
this rule only to the weightiest intrusions.” Id. at 1238. Since the various
interests at stake on occasions when a Pirtle advisement had been required
were not present, we found that we would not extend Pirtle’s holding to
cheek swabs; no advisement was required prior to consent. Id. at 1239.

   As mentioned above, our Court of Appeals had already considered
Pirtle’s extent several times before we decided in Garcia-Torres that Pirtle
did not apply to cheek swabs. As a general matter, those cases stand for
the proposition that Pirtle does not apply to what the court has described
as minimally intrusive searches. For example, in Wilkerson v. State, 933
N.E.2d 891, 894 (Ind. Ct. App. 2010), the Court of Appeals held that Pirtle
was not applicable to pat downs for weapons. The Court of Appeals also
held that the purpose of the Pirtle would not be served by extending the
doctrine to field sobriety tests, chemical breath tests, or blood draws. See
Ackerman v. State, 774 N.E.2d 970, 979-82 (Ind. Ct. App. 2002) (finding that
Pirtle does not apply to field sobriety tests); Schmidt v. State, 816 N.E.2d
925, 942-44 (Ind. Ct. App. 2004) (finding that Pirtle does not apply to
chemical breath tests); and Datzek v. State, 838 N.E.2d 1149, 1158-60 (Ind.
Ct. App. 2005) (finding that Pirtle does not apply to blood draws for blood
alcohol content testing). These searches, according to the court, were
much narrower, and in some cases much less intrusive, than the home and
vehicle searches that require an advisement prior to consent. To the
extent that Court of Appeals treats the issue with a focus on intrusiveness,
we disagree. The intrusiveness of a search does not inform the need for a
Pirtle advisement. However, we find that examining the scope and
breadth of the searches helps us distinguish between the searches that
require a Pirtle advisement and those that do not.

   In deciding whether Pirtle advisements are necessary for a particular
search, such as a DRE, we need not contemplate whether a person has a
legitimate expectation of privacy, nor whether the State’s intrusion was



Indiana Supreme Court | Case No. 18S-CR-488 | October 3, 2018      Page 8 of 11
unreasonable. After all, those questions go to whether police must obtain
a warrant—a question not at issue here. Moreover, a person may freely
consent to even the most unreasonable of intrusions; where such consent
is valid, no warrant is required. Rather, our concern in Pirtle, and in the
ensuing cases, was that consent to certain weighty intrusions carries a
great risk of involuntariness. This is especially true, as described by the
Court of Appeals in Ackerman, 774 N.E.2d at 981, for unlimited and
general searches where police are given cart blanche to search for
unspecified evidence. Searches of a home or a vehicle ordinarily require
officers to specify what they are looking for and their reasons for believing
that the suspect had those items in their home or in their vehicle. A
person who consents to a search gives up those protections and subjects
herself to a general search without probable cause. Because a person in
custody may not fully appreciate the magnitude of what is at stake when
authorizing police to freely search a home or a vehicle, we require police
to explicitly inform persons in custody of their rights under our
Constitution. Those concerns are not as strong when a search is narrowly
focused.

   We need not look further than Pirtle to find a situation where a person
failed to appreciate the extent of rights he was waiving when consenting
to a search. The defendant in Pirtle was arrested for possession of a stolen
vehicle. Nothing in his initial arrest necessitated the search of his home.
It wasn’t until later, when police began to suspect that he had been
involved in a murder, that a search of the defendant’s home became of
interest to police. But as our Court noted in Pirtle, had Pirtle refused
consent to the search, officers would have had to make a showing of
probable cause to a neutral, detached magistrate. Pirtle, 263 Ind. at 26-28,
323 N.E.2d at 639-40. Pirtle’s consent to a search of his apartment exposed
him to criminal liability for an unrelated murder when his arrest was for
possession of a stolen vehicle—a minor crime compared to murder. We
require an advisement because persons in Pirtle’s circumstances rarely
consent freely to an unlimited search unless fully informed of their rights
and the magnitude of what they waive by consenting. Perhaps in some
cases, consent is of their own free will, but, to be sure, we require an
additional advisement in those circumstances that carry great risk of


Indiana Supreme Court | Case No. 18S-CR-488 | October 3, 2018      Page 9 of 11
involuntary consent. Such an advisement serves as a guarantee that
consent is always fully informed. For other more specific searches that do
not carry such risk—where the likelihood that police will come across
inculpatory evidence beyond what they specifically seek is low—a Pirtle
advisement is not necessary.

  We find that a DRE is not the type of search that requires a Pirtle
advisement. The exam consists of various field sobriety tests as well as a
check of a person’s blood pressure and body temperature. Officers also
examine the person’s arms and look into the person’s mouth and nose.
Parts of the procedure take place in a dark room, but the entire procedure
lasts only about thirty minutes. Once the measurements are taken from
the various components of the exam, the results are put into a “drug
symptom matrix” which helps the officer determine whether the suspect
is under the influence of a drug.

   None of the components of a DRE, either individually or cumulatively,
have a strong likelihood of uncovering inculpatory evidence of something
other than what caused officers to conduct the DRE in the first place. Each
component of the exam—the use of the oral thermometer, the examination
of the mouth and nasal cavity, the check for the person’s blood pressure—
is narrow in scope. We do not have concerns that a person in custody will
fail to appreciate the magnitude of the rights they forgo when consenting
to a DRE. By conducting the DRE, officers were only going to find
evidence of Dycus’s intoxication—nothing more. We find that a DRE is
specific enough to eliminate the risk of involuntary consent. No
additional advisement is needed before a person in custody consents to a
DRE.


Conclusion
   For the aforementioned reasons, we find that consent to a DRE does not
require an advisement of rights under Pirtle. The trial court correctly
determined that the evidence obtained as a result of the exam was
admissible. Accordingly, we affirm Dycus’s conviction.




Indiana Supreme Court | Case No. 18S-CR-488 | October 3, 2018    Page 10 of 11
Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.



ATTORNEYS FOR APPELLANT
Rory Gallagher
Ruth Johnson
Marion County Public Defender
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

George P. Sherman
Andrew Kobe
Deputy Attorneys General
Indianapolis, Indiana




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