FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERT D. KING, JR. GREGORY F. ZOELLER
DAVID R. THOMPSON Attorney General of Indiana
Indianapolis, Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
Aug 14 2014, 9:33 am
IN THE
COURT OF APPEALS OF INDIANA
STEPHANIE LUCAS, )
)
Appellant-Defendant, )
)
vs. ) No. 03A01-1309-CR-389
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT
The Honorable Kathleen T. Coriden, Judge
Cause No. 03D02-1206-FD-2859
August 14, 2014
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Stephanie M. Lucas (Lucas), brings an interlocutory appeal
of the trial court’s Order denying her motion to suppress evidence obtained in the course
of a traffic stop.
We reverse.
ISSUE
Lucas raises four issues on interlocutory appeal, one of which we find dispositive
and restate as follows: Whether the trial court erred by denying Lucas’ motion to suppress
evidence that was obtained in violation of her Fourth Amendment rights.
FACTS AND PROCEDURAL HISTORY
At approximately 1:00 a.m. on May 23, 2012, Sergeant Kriston K. Weisner
(Sergeant Weisner) of the Bartholomew County Sheriff’s Office observed a 1996 green
Ford Thunderbird driving along U.S. 31 in Edinburgh, Indiana. As he drove behind the
Thunderbird, Sergeant Weisner conducted a routine license plate check and discovered that
the vehicle’s registered owner, Lucas, had an expired driver’s license. Thus, when Lucas
turned into a gas station parking lot, Sergeant Weisner followed and activated the
emergency lights on his patrol vehicle to initiate a traffic stop. Sergeant Weisner
approached Lucas’ driver-side window and observed that she was smoking a freshly lit
cigarette. Sergeant Weisner explained to Lucas that he had stopped her for driving with an
expired license, to which she responded that it must have expired on her birthday, one
month earlier. “Maybe a minute, two minutes” into the traffic stop, Sergeant Weisner
2
requested that Lucas exit her vehicle, extinguish her cigarette, and accompany him to his
squad car in order to “review the information and decide what we were going to do.”
(Transcript pp. 22, 41). Lucas complied, and once seated in the front seats of the patrol
vehicle, they “began talking about her expired license.” (Tr. p. 34). “[W]ithin a minute or
so” of this discussion, Sergeant Weisner detected the odor of alcohol on her breath. (Tr. p.
34). He questioned Lucas as to whether she had been drinking, and she admitted that she
had consumed four sixteen-ounce beers.
While still seated in his patrol vehicle, Sergeant Weisner administered a variety of
field sobriety tests on Lucas, as well as a portable breathalyzer test. Lucas passed the
backward count test but failed the horizontal gaze nystagmus test and the finger count test.
The results of the breathalyzer revealed that Lucas had a blood alcohol content (BAC) of
0.11. Sergeant Weisner subsequently instructed Lucas to exit the vehicle for additional
field sobriety testing. Lucas successfully completed the one-leg stand test but failed the
walk-and-turn test. Based on his observations during the field sobriety tests, Sergeant
Weisner asked Lucas to submit to a certified chemical breath test, and she consented.
Sergeant Weisner transported her to the Bartholomew County Jail and administered the
chemical breath test at 1:37 a.m. The results indicated a BAC of 0.10. Pursuant to police
protocol, Lucas’ vehicle was towed, and during an inventory search thereof, Sergeant
Weisner discovered a small amount of marijuana. No citation was issued for the expired
driver’s license.
On June 4, 2012, the State filed an Information, charging Lucas with Count I,
operating a vehicle while intoxicated, a Class D felony, Ind. Code §§ 9-30-5-2(a), -3(a)(1);
3
and Count II, operating a vehicle with an alcohol concentration equivalent to at least eight-
hundredths (0.08) gram of alcohol per 210 liters of the person’s breath, a Class D felony,
I.C. §§ 9-30-5-1(a), -3(a)(1). On July 29, 2013, the State amended the Information,
charging Lucas with Count III, possession of marijuana, a Class A misdemeanor, I.C. § 35-
48-4-11.
On March 12, 2013, Lucas filed a motion to suppress. She argued that because
Sergeant Weisner had “subjected [her] to an investigatory detention which exceeded its
permissible scope” and because Sergeant Weisner “is not properly certified to conduct
chemical tests[,]” “all evidence seized as a result of the investigatory detention[] should be
suppressed pursuant to the fruit of the poisonous tree doctrine.” (Appellant’s App. p. 15).
On June 14, 2013, the trial court conducted a suppression hearing and subsequently denied
Lucas’ motion on July 17, 2013. The trial court found that “[Sergeant] Weis[n]er’s reasons
for requesting [Lucas] to accompany him to his car were legitimate and not unnecessarily
intrusive and appropriate during an investigatory stop.” (Appellant’s App. p. 9). The trial
court further found that Sergeant Weisner was “properly certified [as a] breath test operator
and was at the time of [Lucas’] stop” and that “[t]he manner of certification of [Sergeant]
Weisner . . . was done pursuant to the regulations set forth by the Indiana Department of
Toxicology and was endorsed by the Director of the Department of Toxicology.”
(Appellant’s App. p. 10).
A jury trial was scheduled for the end of August, but on August 8, 2013, Lucas
petitioned the trial court to certify its suppression Order for interlocutory appeal. The trial
4
court granted Lucas’ petition on August 13, 2013. On October 25, 2013, we accepted
jurisdiction. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
Our standard for reviewing a trial court’s denial of a motion to suppress is similar
to the standard of review employed in sufficiency of the evidence cases. Simmons v. State,
781 N.E.2d 1151, 1153-54 (Ind. Ct. App. 2002). On appeal, we must determine whether
there is “substantial evidence of probative value” to support the trial court’s ruling. Id. at
1154. We do not reweigh the evidence, we construe all conflicting evidence in favor of
the trial court’s decision, and we consider any uncontested evidence in the defendant’s
favor. Id. A trial court’s determination of reasonable suspicion and probable cause is
reviewed de novo. Thayer v. State, 904 N.E.2d 706, 709 (Ind. Ct. App. 2009).
II. Fourth Amendment
Lucas claims that the scope of Sergeant Weisner’s traffic stop violated her rights
under the Fourth Amendment to the United States Constitution. Lucas does not dispute
that Sergeant Weisner had a lawful basis for initiating the traffic stop based on her expired
driver’s license. See I.C. §§ 9-24-1-1(1), -8(a). Rather, Lucas claims that the trial court
should have granted her motion to suppress the evidence obtained during the stop because
Sergeant Weisner failed to use the least intrusive means reasonably available to investigate
the traffic violation.
The Fourth Amendment, which is applicable to the states through the Fourteenth
Amendment, protects “[t]he right of the people to be secure in their persons, houses, papers,
5
and effects[] against unreasonable searches and seizures” by the government. U.S. CONST.
amend. IV. See Thayer, 904 N.E.2d at 709. Stopping a vehicle and detaining its occupants
is considered a “seizure” for Fourth Amendment purposes. Id. It is well settled that “[a]
traffic stop is more akin to an investigative stop under Terry v. Ohio, 392 U.S. 1 (1968),
than a custodial arrest.” Lockett v. State, 747 N.E.2d 539, 541 (Ind. 2001), reh’g denied.
In line with the Fourth Amendment, a police officer may “briefly detain an individual for
investigatory purposes if, based upon specific and articulable facts, the officer has a
reasonable suspicion that criminal activity has or is about to occur.” State v. Augustine,
851 N.E.2d 1022, 1025 (Ind. Ct. App. 2006).
The “touchstone” of any Fourth Amendment analysis is “‘the reasonableness in all
the circumstances of the particular governmental invasion of a citizen’s personal security.’”
Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (per curiam) (quoting Terry, 392
U.S. at 19). The reasonableness of an investigative stop is determined by examining
“whether the officer’s action was justified at its inception, and whether it was reasonably
related in scope to the circumstances which justified the interference in the first place.”
Terry, 392 U.S. at 20. A police officer’s observation of a traffic infraction provides the
requisite reasonable suspicion to justify the initial stop. State v. Keck, 4 N.E.3d 1180, 1184
(Ind. 2014). Thereafter, the detention “must be temporary and last no longer than is
necessary to effectuate the purpose of the stop[,]” and “the investigative methods employed
should be the least intrusive means reasonably available to verify or dispel the officer’s
suspicion in a short period of time.” Florida v. Royer, 460 U.S. 491, 500 (1983). Once
the purpose of the stop has been fulfilled, a police officer may not “expand his or her
6
investigation subsequent to the stop [unless] other circumstances arise after the stop, which
independently provide the officer with reasonable suspicion of other crimes.” State v.
Morris, 732 N.E.2d 224, 228 (Ind. Ct. App. 2000). In the present case, it is undisputed that
Sergeant Weisner was justified in stopping Lucas for driving with an invalid license; thus,
our analysis turns on the reasonableness of Sergeant Weisner’s subsequent conduct.
In claiming that Sergeant Weisner failed to employ the least intrusive means
reasonably available to complete the traffic stop, Lucas asserts that “[t]here can be no
argument that [it] is more intrusive on a citizen to have an investigation which can be
conducted at the side of her vehicle conducted inside a police vehicle.” (Appellant’s Br.
p. 17). Relying on the United States Supreme Court’s decision in Florida v. Royer, 460
U.S. at 491, Lucas argues that Sergeant Weisner lacked “a legitimate law enforcement
purpose” to justify relocating Lucas from her own vehicle to his patrol vehicle in order to
investigate her expired driver’s license. (Appellant’s Br. pp. 17-18). In Royer, detectives
at an airport approached a suspected drug smuggler and requested that he produce his
airline ticket and identification. Royer, 460 U.S. at 494. After noticing a discrepancy in
the suspect’s documentation, the detectives shifted their investigation from the concourse
to a small, private room, where the detectives obtained permission to search the suspect’s
luggage. Id. The Court determined that the suspect’s consent to the luggage search, which
resulted in the discovery of drugs, was invalid because “the detention to which he was then
subjected was a more serious intrusion on his personal liberty than is allowable on mere
suspicion of criminal activity.” Id. at 502. Although the Royer Court noted that safety and
security concerns might warrant moving a suspect from one location to another during an
7
investigatory detention, it could not find “that the legitimate law enforcement purposes
which justified the detention in the first instance were furthered by removing [the suspect]
to the police room prior to the officer’s attempt to gain his consent to a search of his
luggage.” Id. at 505.
According to Lucas, the present case is analogous to Royer as Sergeant Weisner
testified during the suppression hearing that “there was no law enforcement purpose for
talking about [Lucas’ expired license] inside [his] vehicle[,]” and he could have just as
easily executed the stop at the side of her vehicle. (Tr. p. 28). In particular, the record
reveals that when Sergeant Weisner approached Lucas’ driver-side window, he had already
confirmed that the registered owner of the vehicle had an expired driver’s license; however,
it is unclear whether Sergeant Weisner asked Lucas to provide her driver’s license, vehicle
registration, or any other type of identification. In addition, Sergeant Weisner testified that
he asked Lucas to join him in his vehicle in order to discuss her options for resolving the
traffic infraction—which might include calling someone to give her a ride, issuing a
citation, or providing her with a limited opportunity to renew her license. Yet, Sergeant
Weisner explained that Lucas did not really have an “option” as he would solely determine
the outcome of the traffic stop. Sergeant Weisner also mentioned that he asked Lucas to
sit in the patrol vehicle because he intended to “look[] at the actual readout showing the
date of the expiration, confirming whether it was or was not on her birthday” but later
stated that he would not have been “allowed to show [Lucas] the screen.” (Tr. pp. 41-42).
Moreover, Sergeant Weisner testified that there were no safety concerns prompting his
decision to have Lucas transfer from her vehicle to his, which is also why he did not
8
perform a pat-down to search Lucas for weapons. He stated that the gas station parking lot
was well lit, and he did not indicate that there were any other environmental conditions that
would necessitate conducting the traffic stop inside of his patrol vehicle—such as
inclement weather or a hazardous roadway.
Despite the seeming similarities between Royer and the case at hand, the State
maintains that temporarily detaining Lucas in Sergeant Weisner’s patrol vehicle did not
violate her Fourth Amendment rights. Instead, the State directs our attention to the
longstanding tenet of Fourth Amendment jurisprudence that authorizes law enforcement
officers, in the course of a lawful traffic stop, to order the driver and passengers to exit the
vehicle for the duration of the stop. Mimms, 434 U.S. at 109. While the State would infer
that this rule necessarily includes the authority to redirect the motorists into the police
officers’ vehicles, we consider the legitimate law enforcement purpose that gave rise to
“this per se rule.” Tumblin v. State, 736 N.E.2d 317, 321-22 (Ind. Ct. App. 2000), trans.
denied. The Supreme Court recognized the “inordinate risk” that police officers encounter
in the course of traffic stops—including the possibility that the driver will assault the
officer, as well as the hazards posed by passing traffic. Mimms, 434 U.S. at 110-11.
Balancing the need to protect police officers against “the individual’s right to personal
security free from arbitrary interference by law officers[,]” the Court concluded that a
driver would endure only a “de minimis” additional intrusion into her personal liberty if
ordered to exit her vehicle. Id. at 109-11. The Supreme Court further explained that
[t]he driver is being asked to expose to view very little more of his person
than is already exposed. The police have already lawfully decided that the
driver shall be briefly detained; the only question is whether he shall spend
9
that period sitting in the driver’s seat of his car or standing alongside it. Not
only is the insistence of the police on the latter choice not a “serious intrusion
upon the sanctity of the person,” but it hardly rises to the level of a “petty
indignity.” What is at most a mere inconvenience cannot prevail when
balanced against legitimate concerns for the officer’s safety.
Id. at 111 (quoting Terry, 392 U.S. at 17) (citation omitted). Thus, because the Court
justified even a de minimis intrusion with concerns of officer safety, we decline to find that
the right of police officers to order a driver to exit his vehicle during an investigatory stop
necessarily authorizes police officers to place the individual in the patrol vehicle absent
some legitimate law enforcement purpose. See Berry v. State, 574 N.E.2d 960, 964-65
(Ind. Ct. App. 1991) (finding safety concerns justified the police officers’ detainment of a
motorist in their patrol vehicle while they ran a license check because they “were stopped
in a high crime area, and many people were gathering around the vehicles”), reh’g denied,
trans. denied.
In further support of its argument, the State points to several decisions rendered by
the 6th, 7th, 8th, and 9th Circuit Courts that uphold the constitutionality of detaining a
suspect in a patrol vehicle for a temporary investigation. The State is correct that some of
these cases condone temporary detention in a patrol vehicle as a matter of standard
procedure. See United States v. Brown, 345 F.3d 574, 578 (8th Cir. 2003). Yet, in some
of the other cases referenced by the State, we see legitimate law enforcement purposes—
namely, officer safety—supporting the officer’s decision to detain a driver in his patrol
vehicle. See United States v. Parr, 843 F.2d 1228, 1229-30 (9th Cir. 1988). Nevertheless,
we find two Indiana cases to be more instructive on this issue.
10
First, in Wilson v. State, 745 N.E.2d 789, 791 (Ind. 2001), a police officer initiated
a lawful traffic stop for speeding and, after detecting an odor of alcohol and other
indications of intoxication, requested that the defendant exit his vehicle and accompany the
officer to his squad car for further investigation. Prior to placing the defendant in his patrol
vehicle, the officer conducted a pat-down search and discovered a handgun. Id. Seeking
to have the handgun suppressed, the defendant challenged “the reasonableness during a
routine traffic stop of placing a motorist in the police car thereby subjecting him to a
preliminary pat-down search.” Id. at 792-93. In analyzing whether the police officer
employed “the ‘least intrusive means reasonably available[,]’” our supreme court noted
“various particularized circumstances . . . that may make it reasonably necessary for police
to require a stopped motorist to enter a police vehicle.” Id. at 793 (quoting Royer, 460 U.S.
at 500). Among these circumstances, the court identified, “without limitation, inclement
weather, the lack of available lighting for paperwork, [and] the need to access equipment
with the detained motorist.” Id. In the absence of any such circumstance, the supreme
court specifically
decline[d] to hold that the Fourth Amendment permits the police routinely to
place traffic stop detainees in a police vehicle if this necessarily subjects the
detainee to a preliminary pat-down frisk. An officer is not using the least
intrusive means to investigate a traffic stop if, without a particularized
justification making it reasonably necessary, he places a person into his
patrol vehicle and thereby subjects the person to a pat-down search.
Id. Because the police officer could have administered the field sobriety tests and portable
breathalyzer test outside of his patrol vehicle, the court found the search violated the Fourth
Amendment. Id.
11
Second, in Crocker v. State, 989 N.E.2d 812, 820 (Ind. Ct. App. 2013), trans.
denied, a police officer initiated a lawful traffic stop for speeding and, after observing signs
of the driver’s impairment and nervousness, requested that the driver exit his vehicle and
sit in the police vehicle. Id. at 816. From there, the officer administered field sobriety tests
and asked additional questions. Id. We found that the defendant’s statements should have
been suppressed because the defendant was not advised of his Miranda warnings, and “a
reasonable person who is told to sit in a police vehicle and then immediately subjected to
[field sobriety testing] would not feel free to leave.” Id. at 819. Moreover, while we found
that it was reasonable for the officer to request that the defendant exit his vehicle for further
questioning in light of the signs of his impairment, we discerned no reason that the police
officer “could not have continued his investigation on the roadside.” Id. Even though the
police officer argued that he was entering information into his computer while they were
in the patrol car, the officer failed to “explain[] why [the defendant] had to be in the vehicle
while his information was entered.” Id. The issue in Crocker centered on a Fifth
Amendment custodial interrogation rather than the intrusiveness of a Fourth Amendment
seizure, but the fact that we found the officer’s conduct was unreasonable because he
lacked a “compelling reason” to conduct his investigation inside his police vehicle rather
than the roadside is equally applicable to the present situation. Id.
It is clear from our readings of Wilson and Crocker that, absent reasonable suspicion
or another law enforcement purpose, officers may not expand the scope of the investigatory
stop if it is going to expose the individual to a more intrusive search. Accordingly, like the
courts in Wilson and Crocker, we do not endorse a blanket rule precluding an officer from
12
ever detaining a suspect in the squad car during a traffic stop. Rather, because this
additional intrusion exceeds the de minimis level of intrusion established in Mimms for
asking a driver to simply exit his vehicle, we hold only that Sergeant Weisner’s decision
to place Lucas in the squad car must have been justified by some particular circumstance
that reasonably furthered a law enforcement purpose.
Here, Sergeant Weisner could not identify one reason related to the initial purpose
of the stop for needing Lucas to sit in his patrol vehicle; in fact, he readily admitted that he
could have accomplished his objective at the side of her vehicle. The State offers that
Lucas’ expired license would prevent her from driving herself away at the completion of
the traffic stop, so she “was going to have to wait at the scene with Sergeant Weisner” until
other arrangements for her transportation could be made. (State’s Br. p. 13). Therefore,
the State contends that this “particularized circumstance” warranted Sergeant Weisner’s
placement of Lucas in his squad car. (State’s Br. p. 13). We disagree. We first note that
Sergeant Weisner never advanced this as a reason for removing her to his vehicle; he
explained that he wanted to discuss her options, which he conceded he could have done at
the side of her vehicle, but he did not claim that she was going to have to wait inside of his
vehicle until transportation arrived. Second, at the completion of the stop, Lucas could
have walked somewhere, she could have arranged for a ride and waited in her own vehicle,
or she could have waited inside of the gas station. While Lucas might have requested that
Sergeant Weisner wait with her until she could secure alternate transportation, the State
does not explain why Lucas would have been subject to confinement in Sergeant Weisner’s
vehicle. See Lewis v. State, 755 N.E.2d 1116 (Ind. Ct. App. 2001) (holding that it was
13
reasonably necessary for the police officer to conduct a pat-down search prior to placing a
motorist in the squad car where the motorist’s expired license prevented him from driving
himself and he had requested that the officer transport him to a telephone).
In addition, during the suppression hearing, Sergeant Weisner explained that he
requested that Lucas relocate to his squad car, “[p]artially,” because he wanted to talk to
her in a controlled environment where he would be able to discern any odors of drugs or
alcohol on her person as part of his “normal procedure.” (Tr. pp. 27-28). To this end,
Sergeant Weisner clarified that he saw it as a “red flag” that Lucas was smoking a cigarette
when he approached her vehicle because “[i]t is common that when someone has a freshly
lit cigarette it could be used to mask odors inside the vehicle.” (Tr. pp. 25, 30). Although
we have previously determined that “[d]etecting the odor of alcohol on a person’s breath
does not constitute a search” subject to Fourth Amendment protection, Sergeant Weisner
ceded that there was no evidence to indicate that Lucas was intoxicated to support the
suspicion that she was trying to conceal another odor. Crump v. State, 740 N.E.2d 564,
572 (Ind. Ct. App. 2000), trans. denied. Instead, Sergeant Weisner testified that he did not
observe any speeding, improper lane changes, or other erratic driving; he did not detect the
odor of alcohol while he was talking with Lucas at the side of her vehicle; nor did Lucas
exhibit any hallmarks of intoxication, such as glassy or bloodshot eyes, slurred speech, or
unsteadiness. See Gatewood v. State, 921 N.E.2d 45, 48 (Ind. Ct. App. 2010), trans.
denied. Thus, because Sergeant Weisner did not have a reasonable suspicion to investigate
Lucas for operating while intoxicated until after she was inside the squad car, he did not
14
further any legitimate law enforcement purpose related to her expired driver’s license by
transferring her to his vehicle.
Finally, the State espouses the reasonableness of Sergeant Weisner’s traffic stop
based on Sergeant Weisner’s testimony that Lucas voluntarily complied with his request
to sit in the squad car. Although Sergeant Weisner did not inform Lucas that she had the
option to remain in her own vehicle, he testified that if she had expressed her reluctance,
he would have instead completed the traffic stop “at her vehicle outside of mine.” (Tr. p.
28). Because she was still clearly being stopped for her expired license, we cannot find
that a reasonable person in her situation would have felt free to decline Sergeant Weisner’s
request to shift the interaction to his patrol vehicle, and certainly no reasonable person
would have felt free to exit the police vehicle. See Payne v. State, 854 N.E.2d 1199, 1204-
05 (Ind. Ct. App. 2006), trans. denied.
We recognize “the heartbreaking effects of drunk driving in our [S]tate” and the
importance of providing our law enforcement with the necessary tools to protect the public
from these dangerous situations. Robinson v. State, 5 N.E.3d 362, 368 (Ind. 2014). While
there is no bright-line test for evaluating whether an investigatory stop satisfies the
reasonableness requirement of the Fourth Amendment, an investigative stop must be
accomplished using the least intrusive means readily available absent some particular
circumstance justifying an additional intrusion. United States v. Sharpe, 470 U.S. 675, 685
(1985). Here, the traffic stop was more intrusive than authorized for a permissible
investigatory stop because Sergeant Weisner did not articulate a legitimate reason as to
why he could not complete his investigation standing alongside Lucas’ vehicle. As a result,
15
suppressing the evidence obtained after Sergeant Weisner unreasonably moved Lucas to
his squad car is necessary as a means of deterring police officers from impinging the
guarantees of the Fourth Amendment in the future. See Camp v. State, 751 N.E.2d 299,
302-03 (Ind. Ct. App. 2001), trans. denied. We therefore conclude that the trial court
should have granted Lucas’ motion to suppress.
CONCLUSION
Based on the foregoing, we conclude that the evidence obtained as a result of Lucas’
unlawful investigatory stop should be suppressed.
Reversed.
ROBB, J. concurs
BRADFORD, J. concurs in result with separate opinion
16
IN THE
COURT OF APPEALS OF INDIANA
STEPHANIE LUCAS, )
)
Appellant-Defendant, )
)
vs. ) No. 03A01-1309-CR-389
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
BRADFORD, Judge, concurring in result.
Although I do not believe that Sergeant Weisner’s request that Lucas sit in his patrol
vehicle violated Lucas’s rights under the Fourth Amendment,1 I concur in result with the
majority opinion because, under the circumstances, I believe that Lucas was subjected to
1
While I recognize that in the instant matter, an arguably less restrictive procedure would have
been for Sergeant Weisner to allow Lucas to remain in her vehicle while he verified that her license was
expired, I do not believe that Sergeant Weisner acted unreasonably in asking Lucas to wait in the front
passenger seat of his patrol vehicle as he did so. The law is clear that law enforcement officers “may, as a
matter of course, order the driver … to exit a lawfully stopped vehicle.” Tumblin v. State, 736 N.E.2d 317,
321 (Ind. Ct. App. 2000) (citing Tawdul v. State, 720 N.E.2d 1211, 1214 (Ind. Ct. App. 1999), trans.
denied). “Once a vehicle has been lawfully stopped, the additional intrusion of asking the driver … to exit
is ‘de minimis,’ essentially an ‘inconvenience.’” Id. (citing Tawdul, 720 N.E.2d at 1214). Here, Sergeant
Weisner’s request essentially amounts to an inconvenience as it did not elongate the traffic stop or amount
to a forcible detention of Lucas.
17
an illegal custodial interrogation without first being advised of her rights. I would therefore
conclude that the incriminating statements made to Sergeant Weisner and the physical
evidence recovered from Lucas’s vehicle during the search incident to her arrest should
have been suppressed.
“Miranda[2] and its progeny have ruled that the [Fifth Amendment]
right to counsel ... accrues upon ‘custodial interrogation.’” Zook v. State, 513
N.E.2d 1217, 1220 (Ind. 1987) (quoting Miranda, 384 U.S. at 444, 86 S.Ct.
1602). This is because the right is “meant to overcome [that] inherently
coercive and police dominated atmosphere[.]” Davies v. State, 730 N.E.2d
726, 733 (Ind. Ct. App. 2000) (citing Miranda, 384 U.S. at 444, 86 S.Ct.
1602), trans. denied. “‘Custodial interrogation’” has been explained to mean
“‘questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way.’” Zook, 513 N.E.2d at 1220 (quoting Miranda, 384 U.S. at
444, 86 S.Ct. 1602).
Crocker v. State, 989 N.E.2d 812, 818 (Ind. Ct. App. 2013) trans. denied.
In Crocker, the defendant challenged the admissibility of statements he made while
sitting in an officer’s patrol vehicle, claiming that his statements should be suppressed
because he had not been Mirandized before making the statements. Id. The State argued
that the defendant’s statements were admissible because the defendant was not in custody
when sitting in the officer’s patrol vehicle. Id. In considering whether the defendant was
in custody for purposes of Miranda, we stated as follows:
While it is true that “[o]rdinarily, persons detained for traffic stops are not
‘in custody’ for purposes of Miranda[,] [t]his is not to say a traffic stop may
not turn into a custodial situation based upon the conduct of the officer.”
Lockett v. State, 747 N.E.2d 539, 543 (Ind. 2001) (quoting Berkemer v.
McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).
2
Miranda v. Arizona, 384 U.S. 436 (1966).
18
The law enforcement officer’s duty to give Miranda warnings
does not attach unless there has been such a restriction on a
person’s freedom as to render him in custody. A person is
deemed to be in custody if a reasonable person in the same
circumstances would not feel free to leave. Whether a person
was in custody depends upon objective circumstances, not
upon the subjective views of the interrogating officers or the
subject being questioned. In determining whether an
individual was in custody, a court must examine all of the
circumstances surrounding the interrogation, but the ultimate
inquiry is simply whether there was a formal arrest or restraint
on freedom of movement of the degree associated with a
formal arrest. Courts 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 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.
Gauvin v. State, 878 N.E.2d 515, 520-21 (Ind. Ct. App. 2007) (citations
omitted, formatting altered).
Id. at 818-19.
Upon review, we concluded that the defendant was in custody when the officer was
questioning him in the officer’s patrol vehicle. Id. at 819. Although the defendant was not
handcuffed or physically restrained, the officer had a high degree of control over the
environment. Id. The first thing the officer did after the defendant was in his vehicle was
administer a field sobriety test. Id. The defendant was never told that he did not have to
answer the officer’s questions or that he was free to go about his business. Although the
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questioning was neither prolonged nor aggressive, the officer employed subterfuge when
talking to the defendant. Id. Moreover, although the officer was entering the defendant’s
information in his computer as they spoke, the officer did not explain why the defendant
needed to be in the officer’s patrol vehicle while his information was entered or why the
field sobriety test could not have been administered on the roadside. Id.
Under the totality of the circumstances of the case, we concluded that the defendant
was in custody as soon as he was in the officer’s patrol vehicle. Id. at 819-20. In reaching
this conclusion, we stated that we believe that a reasonable person who is told to sit in a
police vehicle and then immediately subjected to a field sobriety test would not feel free to
leave. Id. at 819. We further reiterated, however, that we did not “wish to be understood
as holding that a person is in custody whenever he is in a police vehicle.” Id.
In the instant matter, nothing in the record indicates that the weather conditions or
the environmental surroundings necessitated Sergeant Weisner’s request that Lucas exit
her vehicle and get into his patrol vehicle. In addition, Sergeant Weisner admitted that he
did not have any safety concerns which would necessitate asking Lucas to exit her vehicle
and get into his patrol vehicle. Within a minute or two of Lucas getting into Sergeant
Weisner’s patrol vehicle, Sergeant Weisner claimed to have smelled the odor of alcoholic
beverages on Lucas’s breath. He then asked Lucas if she had been drinking, and when she
answered affirmatively, he conducted various field sobriety tests. Similar to the situation
presented in Crocker, Sergeant Weisner had a high degree of control over the environment
despite the fact that Lucas was not handcuffed or physically restrained. Once Lucas was
in Sergeant Weisner’s patrol vehicle, Sergeant Weisner almost immediately began
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questioning Lucas and conducting field sobriety tests. Nothing in the record indicates that
Sergeant Weisner told Lucas that she did not have to answer his questions or that she was
free to leave. I do not believe that a reasonable person in Lucas’s situation would feel free
to refrain from answering Sergeant Weisner’s question or to leave his patrol vehicle. As
such, under the totality of the circumstances, I would conclude that, for the purposes of
Miranda, Lucas was in custody as soon as she was in Sergeant Weisner’s patrol vehicle.
Because I believe Lucas was in custody for the purposes of Miranda, I would further
conclude that any statements made by Lucas after she entered Sergeant Weisner’s patrol
vehicle should be suppressed. Furthermore, with respect to the marijuana which was
ultimately discovered during a search of Lucas’s vehicle incident to her arrest for operating
a vehicle while intoxicated, I would conclude that the marijuana should be suppressed as
it was “fruit of the poisonous tree,” i.e., evidence that would not have been discovered but
for Lucas’s inadmissible statements that were made once she was in the front seat of
Sergeant Weisner’s patrol vehicle. Put another way, but for Lucas’s admission that she
was operating her vehicle after having drank alcoholic beverages, Lucas would not have
been arrested and Sergeant Weisner would not have searched Lucas’s vehicle.
Accordingly, I agree with the majority that the trial court erred in denying Lucas’s motion
to suppress.
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