MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
court except for the purpose of establishing Aug 14 2017, 8:29 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. R. Patrick Magrath
Attorney General of Indiana Alcorn Sage Schwartz &
Magrath, LLP
Tyler G. Banks
Madison, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, August 14, 2017
Appellant-Plaintiff, Court of Appeals Case No.
36A05-1702-CR-356
v. Appeal from the Jackson Circuit
Court
Benjamin Bracewell, The Honorable William E. Vance,
Appellee-Defendant. Senior Judge
Trial Court Cause No.
36C01-1607-F2-18
Robb, Judge.
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Case Summary and Issues
[1] In July 2016, Benjamin Bracewell was arrested and the State charged him with
dealing in methamphetamine, a Level 2 felony; unlawful possession of a
firearm by a serious violent felon, a Level 4 felony; carrying a handgun without
a license, a Level 5 felony; and possession of marijuana, a Class B
misdemeanor. Prior to trial, Bracewell filed motions to suppress the cash, key
cards, marijuana, handgun, methamphetamine, and scales found during his
encounter with police as well as statements he made to police. The trial court
granted Bracewell’s motions. The State raises three issues for our review,
which we consolidate and restate as: whether the trial court erred in suppressing
the evidence. Concluding the trial court properly suppressed the cash, key
cards, marijuana, and Bracewell’s statements but erred in suppressing the
handgun, methamphetamine, and scales, we affirm in part, reverse in part, and
remand for further proceedings.
Facts and Procedural History
[2] On the evening of July 9, 2016, Officer James Handley of the Seymour Police
Department parked his unmarked patrol car in the parking lot of a Seymour
hotel. The Seymour Police Department considered the area a “high crime
area.” Transcript, Volume II at 11. Ten minutes later, Bracewell walked from
the hotel towards Officer Handley’s vehicle. Bracewell walked to within a
couple car lengths of Officer Handley’s vehicle before turning around and
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walking back toward the hotel. Officer Handley then exited his vehicle and
followed Bracewell.
[3] Officer Handley caught up with Bracewell near the top of the two-story hotel’s
exterior stairwell. Officer Handley asked Bracewell why he turned and walked
away from the police vehicle. Bracewell replied he thought the car belonged to
a friend who was supposed to give him a ride and he turned around after
realizing his mistake. Officer Handley spoke into his police radio, informing
dispatch he was with Bracewell. Bracewell reacted by raising both hands into
the air, showing he had nothing in them. Officer Handley continued speaking
to Bracewell for more than five minutes. Officer Handley asked Bracewell
whether he had “something on you you shouldn’t have,” accused him of
“moving stuff,” and told him “you’re gonna get caught.” State’s Exhibit 1, Clip
1 at 1:05-1:15, 4:40-5:00.
[4] Six minutes after Officer Handley began conversing with Bracewell, Officer
Devlin McMindes of the Seymour Police Department arrived. Officer Handley
again asked Bracewell if he had anything illegal on his person and Bracewell
responded he did not. Bracewell then consented to a pat-down search. Officer
Handley conducted a pat-down search and found nothing illegal.
[5] Officer Handley then turned to walk downstairs to retrace and search
Bracewell’s route, telling Bracewell, “I’m gonna have [Officer McMindes] stand
with you and I’m gonna walk your route real quick, okay?” Id. at 7:00-7:10.
As Officer Handley began retracing Bracewell’s route, a third officer, Officer
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Benjamin Miller of the Seymour Police Department, arrived and also stood
with Bracewell. When Officer Handley reached the bottom of the stairwell,
Bracewell dropped his driver’s license from the top of the stairwell. Officer
Handley retrieved the card from the ground and noticed what he believed was a
marijuana cigarette a few inches from the card. Officer Handley instructed
Officer McMindes to place Bracewell in custody. Officer McMindes placed
Bracewell in handcuffs, read him his Miranda warnings, and searched him.
Officer McMindes found cash and two key cards in Bracewell’s pocket.1
[6] Officer Handley continued retracing Bracewell’s route before eventually
searching more around the stairwell. Officer Handley first found a red bag
lying on the ground on the opposite side of the stairwell from where he and
Bracewell stood and talked. Officer Handley opened the bag, discovered a gun,
and brought it to Bracewell. Bracewell denied possessing the bag or gun.
Officer Handley searched the stairwell again and found a black case sitting on a
small ledge near where he found the red bag. He opened the black case and
found methamphetamine and scales. Bracewell denied possessing the case or
its contents.
[7] Officer McMindes transported Bracewell to the police station. Officer
McMindes later testified Bracewell admitted during his transport he dropped
the marijuana cigarette. The next day, while Bracewell was still in custody,
1
The key cards led officers to a nearby hotel where they found $4,000 in cash in a room Bracewell was
staying in.
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Officer Handley read him his Miranda warnings again and questioned him.
Bracewell told Officer Handley that he had him “dead in rights.” Tr., Vol. II at
36.
[8] The State charged Bracewell with dealing in methamphetamine, a Level 2
felony; unlawful possession of a firearm by a serious violent felon, a Level 4
felony; carrying a handgun without a license, a Level 5 felony; and possession
of marijuana, a Class B misdemeanor.
[9] On August 17, 2016, Bracewell filed a motion to suppress. Bracewell alleged
his detainment was unlawful under the Fourth Amendment to the United States
Constitution and Article 1, Section 11 of the Indiana Constitution. As a result,
he argued physical evidence discovered during his unlawful detainment should
be suppressed. On December 12, 2016, Bracewell filed another motion to
suppress, seeking to suppress some of his statements. After hearing evidence
and receiving briefing from both parties, the trial court granted Bracewell’s
motions. This appeal followed.
Discussion and Decision
I. Standard of Review
[10] On appeal from the grant of a motion to suppress, the State appeals from a
negative judgment and must show the trial court’s ruling on the suppression
motion was contrary to law. State v. Estep, 753 N.E.2d 22, 24-25 (Ind. Ct. App.
2001). This court neither reweighs the evidence nor judges the credibility of the
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witnesses; rather, we consider only the evidence most favorable to the
judgment. Id. at 25. This court will reverse a negative judgment only when the
evidence is without conflict and all reasonable inferences lead to a conclusion
opposite that of the trial court. Id.
II. Items in Stairwell
A. Marijuana Cigarette
[11] The State argues the trial court erred in suppressing the marijuana cigarette
Officer Handley found near Bracewell’s driver’s license. Specifically, the State
contends Bracewell abandoned the marijuana cigarette while walking away
from Officer Handley, before any seizure of Bracewell occurred. As a result,
the State alleges no Fourth Amendment violation arose from its collection.
Alternatively, the State contends Bracewell abandoned the marijuana cigarette
during his encounter with Officer Handley at the top of the stairs, which
constituted either a consensual encounter or a valid Terry stop. Either way, the
State argues no Fourth Amendment violation occurred. We disagree.
[12] The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
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.
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The Fourth Amendment requires that an arrest or detention for more than a
short period be justified by probable cause. Woods v. State, 547 N.E.2d 772, 778
(Ind. 1989), abrogated on other grounds by Richardson v. State, 717 N.E.2d 32 (Ind.
1999). Probable cause to arrest exists where the facts and circumstances within
the knowledge of the officers are sufficient to warrant a belief by a person of
reasonable caution that an offense has been committed and that the person to
be arrested has committed it. Brinegar v. United States, 338 U.S. 160, 175-76
(1949).
[13] Not every confrontation between a police officer and a citizen amounts to a
Fourth Amendment seizure of a citizen. Hayes v. State, 794 N.E.2d 492, 496
(Ind. Ct. App. 2003), trans. denied. A seizure occurs when, taking into account
all the circumstances surrounding an encounter, the police conduct would
communicate to a reasonable person that he was not free to ignore the police
presence and go about his business. Id. Police actions that a reasonable person
might interpret as an intrusion on freedom of movement include the threatening
presence of several officers, the display of a weapon by an officer, some physical
touching of the citizen, or use of language or tone of voice indicating that
compliance with the officer’s request might be compelled. United States v.
Mendenhall, 446 U.S. 544, 554 (1980).
[14] Even if police actions exhibit an intrusion on freedom of movement, a seizure
does not occur until the person submits to the show of authority. California v.
Hodari D., 499 U.S. 621, 626 (1991). Further, abandoned property is not subject
to Fourth Amendment protection. Campbell v. State, 841 N.E.2d 624, 627 (Ind.
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Ct. App. 2006). However, if property is abandoned after a citizen is improperly
detained, the evidence is not admissible. Id. The question of abandonment is
primarily a question of intent and rests upon whether the defendant retained a
reasonable expectation of privacy in the property at the time of the search or
seizure. State v. Machlah, 505 N.E.2d 873, 879 (Ind. Ct. App. 1987) trans.
denied.
[15] In addition to seizures, another form of confrontation between officers and
citizens with Fourth Amendment implications is a Terry stop. A Terry stop
occurs when an officer, without a warrant or probable cause, briefly detains an
individual for investigatory purposes. Overstreet v. State, 724 N.E.2d 661, 663
(Ind. Ct. App. 2000), trans. denied. The officer must have reasonable suspicion,
based on specific and articulable facts, that criminal activity may be afoot. Id.
“[R]easonable suspicion must be comprised of more than hunches or
unparticularized suspicions.” State v. Murray, 837 N.E.2d 223, 225-26 (Ind. Ct.
App. 2005), trans. denied. In contrast to seizures and Terry stops, consensual
encounters have no Fourth Amendment implications. Overstreet, 724 N.E.2d at
663. During consensual encounters, officers make a casual and brief inquiry of
a citizen who is free to leave at any time. Id.
[16] Officer Handley’s interaction with Bracewell was not a consensual encounter.
Officer Handley quickly followed Bracewell after Bracewell turned and walked
away from Officer Handley’s vehicle. Officer Handley caught up to Bracewell
at the top of the stairwell and began questioning Bracewell and accusing him of
illegal activity. Bracewell raised both hands to show his empty palms when he
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heard Officer Handley state his name while speaking to dispatch and Officer
Handley physically patted-down Bracewell. After Officer McMindes arrived,
also in full uniform, Officer Handley told Bracewell that Officer McMindes
would stand with him while Officer Handley retraced Bracewell’s route. As
Officer Handley began retracing Bracewell’s route, Officer Miller, also in full
uniform, arrived at the scene and stood with Bracewell. By this point the
interaction had moved well beyond a casual and brief encounter.
[17] The interaction also was not a valid Terry stop. In support of the encounter
being a valid Terry stop, the State contends Bracewell walked away from Officer
Handley in a “high-crime area.” Brief of Appellant at 23. The State also
contends Seymour police officers received information Bracewell was involved
in drug activity at the hotel. These facts do not provide reasonable suspicion to
conduct a Terry stop.
[18] The State provided no evidence at the suppression hearing supporting its
contention that the area in which Officer Handley found Bracewell was a high-
crime area. Regardless, a person’s presence in a high-crime area combined with
walking away from an officer are not sufficient to provide reasonable suspicion.
Jacobs v. State, 76 N.E.3d 846, 850 (Ind. 2017). The information Seymour
police officers received concerning Bracewell’s alleged drug activity was from
“[p]rior to this night.” Br. of Appellant at 23. On the night in question, Officer
Handley simply observed Bracewell walk through a hotel parking lot towards
Officer Handley’s vehicle and then turn around. Officer Handley observed
nothing illegal and had received no reports of illegal activity at that time. In
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light of these facts, we cannot say Officer Handley held more than an
unparticularized suspicion. As a result, Officer Handley lacked reasonable
suspicion to conduct a valid Terry stop.
[19] The correct characterization of the officers’ interaction with Bracewell is a
seizure. Officer Handley questioned and accused Bracewell and then
conducted a physical pat-down of him while two more officers arrived at the
scene. Additionally, once three fully-uniformed officers were there, Officer
Handley told Bracewell that Officer McMindes would stand with him while
Officer Handley retraced his route. In light of these facts, we cannot say a
reasonable person in Bracewell’s position would feel free to leave. Further,
Bracewell submitted to the officers’ show of authority when he raised his hands
to show they were empty. Because Officer Handley lacked reasonable
suspicion, he also lacked the probable cause necessary to lawfully seize
Bracewell. Therefore, Bracewell was unlawfully seized at the top of the
stairwell before Officer Handley found the marijuana cigarette.
[20] The State’s contention that Bracewell might have abandoned the marijuana
cigarette while walking up the stairs, and therefore before being seized, is an
invitation to reweigh the evidence and judge the credibility of the witnesses,
which we cannot do. See Estep, 753 N.E.2d at 25. Officer Handley found the
marijuana cigarette just inches away from Bracewell’s driver’s license. The trial
court could have reasonably concluded Bracewell dropped the marijuana
cigarette at the same time he dropped his driver’s license, after being unlawfully
seized. Therefore, even if the marijuana cigarette is considered abandoned, it
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would not be admissible because property abandoned after an unlawful seizure
is not admissible. See Campbell, 841 N.E.2d at 627. As a result, the trial court
did not err in suppressing the marijuana cigarette.
B. Gun, Methamphetamine, and Scales
[21] The State similarly argues the trial court erred in suppressing the gun,
methamphetamine, and scales. The State contends Bracewell abandoned the
bag and case containing those items before any seizure occurred because Officer
Handley found the bag and case in a location consistent with Bracewell
dropping them while walking away from Officer Handley. The State contends
the bag and case remained in a public area for at least ten minutes where
anyone could have found them. As a result, Bracewell lost any expectation of
privacy in them. We agree with the State’s argument this evidence was
abandoned property.
[22] Bracewell contends he dropped the bag and case in response to the officers’
illegal conduct.2 However, Officer Handley never saw Bracewell holding the
bag or case while talking to him at the top of the stairwell. Further, Officer
Handley found the bag on the ground on the opposite side of the stairwell and
the case balanced on a small ledge nearby. Based on their location, and
because Officer Handley never saw Bracewell holding these large items, it is
2
For the purpose only of suppression and this appeal, Bracewell concedes the evidence supports the inference
he is the owner of the bag and case.
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highly unlikely Bracewell dropped the bag and case from the top of the
stairwell. Therefore, unlike the marijuana and driver’s license, Bracewell must
have dropped the bag and case before being seized at the top of the stairwell.
[23] The question then becomes whether Bracewell abandoned the bag and case or
retained a reasonable expectation of privacy in them at the time of the search.
Machlah, 505 N.E.2d at 879. Bracewell argues he placed the bag and case in a
location where he intended them to be hidden from law enforcement.
However, Bracewell placed the bags in plain view next to the exterior stairwell
of a hotel where the police, or anyone else, could find them. Regardless of
Bracewell’s intent, there was nothing stopping the police from finding the bag
and case in that location and Bracewell did not retain an expectation of privacy
in them. See United States v. Thomas, 864 F.2d 843, 846 (D.C. Cir. 1989)
(holding a defendant who left his gym bag on the floor of a public hallway in an
apartment building and walked down the stairs surrendered his expectation of
privacy). As a result, the bag and case are appropriately considered abandoned
property. Since Bracewell abandoned the bag and case before his unlawful
seizure, the trial court erred in suppressing the gun, methamphetamine, and
scales found therein.
III. Items on Bracewell’s Person
[24] The State also contends the trial court erred in suppressing the cash and key
cards Officer McMindes found on Bracewell’s person. The State argues Officer
McMindes found the money and key cards during a search incident to a lawful
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arrest because Officer Handley’s discovery of the marijuana cigarette provided
probable cause for Bracewell’s arrest. We disagree.
[25] Officers may conduct a search without a warrant if it is incidental to a lawful
arrest. Townsend v. State, 460 N.E.2d 139, 141 (Ind. 1984). The “fruit of the
poisonous tree” doctrine bars the admission of evidence “directly obtained by
[an] illegal search or seizure as well as evidence derivatively gained as a result
of information learned or leads obtained during that same search or seizure.”
Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013). To invoke the doctrine, a
defendant must first prove a Fourth Amendment violation and then must show
the evidence was a “fruit” of the illegal search. Id. But the exclusion of
evidence is not the result of a simple “but for” test. Jackson v. State, 996 N.E.2d
378, 384 (Ind. Ct. App. 2013), trans. denied. The doctrine has no application
where (1) “evidence [is] initially discovered during, or as a consequence of, an
unlawful search, but [is] later obtained independently from activities untainted
by the initial illegality,” Murray v. United States, 487 U.S. 533, 537 (1988)
(independent source); (2) “the information ultimately or inevitably would have
been discovered by lawful means,” Nix v. Williams, 467 U.S. 431, 444 (1984)
(inevitable discovery); or (3) “the connection between the lawless conduct of the
police and the discovery of the challenged evidence has ‘become so attenuated
as to dissipate the taint,’” Wong Sun v. United States, 371 U.S. 471, 487 (1963)
(citation omitted) (attenuation). The burden is on the State to prove one of
these exceptions applies. Clark, 994 N.E.2d at 266, 272.
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[26] As discussed above, Bracewell was unlawfully seized at the top of the stairwell
and has shown a Fourth Amendment violation occurred. As a result of that
violation, Officer Handley found the marijuana cigarette. Officer Handley then
used the marijuana cigarette as the basis for probable cause to arrest Bracewell.
Officer Handley only had probable cause for Bracewell’s arrest because of an
unlawful seizure. The State does not argue the evidence found on Bracewell’s
person fits into one of the exceptions, instead insisting Bracewell’s arrest was
lawful. However, Bracewell demonstrated a Fourth Amendment violation
occurred and the evidence found on his person were fruits of that violation.
The State had the burden of showing the evidence fits into one of the
exceptions. Given the police did not have probable cause until after the
unlawful seizure, coupled with the State’s failure to meet its burden of showing
one of the exceptions applies, we conclude the trial court properly suppressed
the cash and key cards found on Bracewell’s person.
IV. Bracewell’s Statements
[27] Lastly, the State contends the trial court erred in suppressing Bracewell’s
statements. Bracewell’s first statement at issue occurred at the top of the
stairwell, when he denied possession of the marijuana cigarette, bag, and case.
The next statement at issue occurred while Officer McMindes transported
Bracewell to the police station, when Bracewell admitted dropping the
marijuana cigarette. Bracewell’s last statement at issue came the following day
at the police station, when Bracewell told Officer Handley that he had him
“dead in rights.”
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[28] The State argues Bracewell made all his statements voluntarily after a lawful
arrest. Alternatively, the State argues if Bracewell’s arrest was unlawful, the
taint of unlawful conduct dissipated before Bracewell’s statements. If that is
true, then the evidence is admissible under the attenuation exception to the fruit
of the poisonous tree doctrine. The State contends there were intervening
circumstances between the unlawful conduct and Bracewell’s statements
because Officers Handley and McMindes read Bracewell his Miranda warnings
before Bracewell voluntarily spoke. Further, the State contends no officers
committed additional flagrant misconduct to exploit the unlawful seizure. As a
result, the State alleges the taint of unlawful conduct dissipated before
Bracewell’s statements and they are therefore admissible. We disagree.
[29] As discussed above, Bracewell’s seizure was unlawful and all of his statements
at issue followed his unlawful seizure. Therefore, the State must rely on its
argument that the fruit of the poisonous tree doctrine does not apply to
Bracewell’s statements because they fall under the attenuation exception. In
determining whether the connection has become attenuated, courts generally
consider “(1) the time elapsed between the illegality and the acquisition of the
evidence; (2) the presence of intervening circumstances; and (3) the purpose and
flagrancy of the official misconduct.” Sanchez v. State, 803 N.E.2d 215, 221
(Ind. Ct. App. 2004) (quoting United States v. Green, 111 F.3d 515, 521 (7th Cir.
1997)), trans. denied. The important consideration in the third factor is whether
the evidence came from the “‘exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.’” Quinn v. State,
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792 N.E.2d 597, 600 (Ind. Ct. App. 2003) (quoting Wong Sun, 371 U.S. at 488),
trans. denied.
[30] The State concedes very little time elapsed between the unlawful conduct and
Bracewell’s statements. Br. of Appellant at 34. The first two statements came
immediately after Bracewell’s unlawful arrest, and the last came the next day
while Bracewell was still in custody. Bracewell made all the statements at issue
within twenty-four hours of his unlawful seizure.
[31] As to the presence of intervening circumstances, the State also concedes
Miranda warnings alone are not sufficient to purge the taint of an illegal arrest.
Id. at 33. The fact that Bracewell’s statements were voluntary also does not
purge the taint of the unlawful seizure. In Turner v. State, 862 N.E.2d 695 (Ind.
Ct. App. 2007), a detective carried out an unlawful traffic stop on Dennis
Turner. After speaking with the detective at the scene, Turner agreed to talk
more at the sheriff’s department. Turner rode to the sheriff’s department in the
detective’s vehicle but was never handcuffed. After receiving Miranda
warnings, Turner voluntarily made a recorded statement. Still, this court
suppressed Turner’s statement, emphasizing the “near-constant interaction
between Turner and police.” Id. at 702. Likewise, in this case, Bracewell
remained in near-constant interaction with the police from the time of his
unlawful seizure to the time he made the final statement at issue. Additionally,
Officer McMindes actually arrested and handcuffed Bracewell before Bracewell
made any of the statements. Therefore, as in Turner, the Miranda warnings and
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voluntariness of Bracewell’s statements are insufficient to purge the taint of the
unlawful seizure.3
[32] In regard to the purpose and flagrancy of the official misconduct, the State
argues misconduct requires more than “the mere absence of proper cause for
the seizure.” Utah v. Strieff, 136 S.Ct. 2056, 2064 (2016). In Strieff, an officer
conducting a “bona fide investigation of a suspected drug house” observed
Edward Strieff leaving the house. Id. at 2063. The officer previously received
an anonymous tip regarding the house and corroborated the tip with personal
observation. The officer unlawfully seized Strieff in order to uncover more
information about the house. The officer committed no further unlawful
activity, but found methamphetamine and paraphernalia on Strieff’s person.
The Utah Supreme Court suppressed the methamphetamine and paraphernalia.
The United States Supreme Court reversed, noting “neither the officer’s alleged
purpose nor the flagrancy of the violation rise to a level of misconduct to
warrant suppression,” as well as the presence of other intervening
circumstances. Id. at 2064.
[33] As in Strieff, the police officers here did not commit further unlawful conduct
after the unlawful seizure. However, unlike the officer in Strieff, Officer
Handley unlawfully seized Bracewell for the purpose of questioning and
3
The State does not contend the discovery of the meth, scales, and the gun constitute intervening
circumstances giving the officers probable cause to arrest Bracewell and we decline to develop that argument
on its behalf. Baniaga v. State, 891 N.E.2d 615, 620 n.9 (Ind. Ct. App. 2008). While we may affirm on any
ground, we may only reverse on arguments presented by a party.
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accusing Bracewell of illegal activity, not to further some other bona fide
investigation. The State emphasizes the lack of further misconduct by the
officers in this case, but ignores the purpose of the unlawful seizure. In light of
the purpose of Bracewell’s seizure, the third factor considered in the attenuation
analysis is less favorable to the State than in Strieff. Meanwhile, the other two
factors weigh in Bracewell’s favor.
[34] In sum, considering the short time that elapsed between Bracewell’s unlawful
arrest and his statements, his near-constant interaction with officers, and the
purpose of the seizure, we cannot say the trial court erred in suppressing
Bracewell’s statements.
Conclusion
[35] Concluding the trial court properly suppressed the marijuana cigarette found on
the ground, the cash and key cards found on Bracewell’s person, and
Bracewell’s statements, but erred in suppressing the gun, methamphetamine,
and scales found in the stairwell, we affirm in part, reverse in part, and remand
for further proceedings.
[36] Affirmed in part, reversed in part, and remanded for further proceedings.
Vaidik, C.J., and Bailey, J., concur.
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