FILED
May 10 2018, 9:02 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr. Mark J. Dove
Attorney General of Indiana R. Patrick Magrath
Alcorn Sage Schwartz &
Justin F. Roebel
Magrath, LLP
Deputy Attorney General
Madison, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, May 10, 2018
Appellant-Plaintiff, Court of Appeals Case No.
40A01-1706-CR-1328
v. Appeal from the Jennings Circuit
Court
Larry O. Janes, The Honorable Jon W. Webster,
Appellee-Defendant. Judge
Trial Court Cause No.
40C01-1605-F2-5
Bailey, Judge.
Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018 Page 1 of 10
[1] The State appeals the trial court’s suppression of evidence found during a
search of Larry Janes’s vehicle, arguing that the trial court erred by finding that
because a Pirtle1 warning was not given, suppression was warranted. Finding
no error, we affirm.
Facts 2
[2] In the early morning of May 17, 2016, Janes and a passenger drove past
Jennings County Sheriff’s Department Reserve Deputy Jason Littrell on a rural
road. Deputy Littrell observed that Janes failed to dim his headlights. Deputy
Littrell followed Janes’s vehicle for a minute so he could stop Janes in a well-lit
area; during this time, the deputy observed Janes slow down so that he was
driving under the posted speed limit, turn on his turn signal well before an
intersection, stop well in front of the white line at the intersection, make a wide
turn at the intersection, and drive on the emergency portion of the road.
[3] Once Deputy Littrell stopped the vehicle and approached Janes, he advised
Janes why he stopped him, and Janes admitted that he did not dim his
headlights for approaching traffic. Deputy Littrell observed that Janes was
nervous and would not make eye contact with him, and when the deputy
requested his driver’s license, Janes initially handed him a bank card. This
1
Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975).
2
We heard oral argument at Lawrenceburg High School on April 13, 2018. We thank the school’s
administration, faculty, and students, and the Dearborn County Bar Association, for their gracious
hospitality. We also thank counsel for their informative and engaging oral advocacy and subsequent
discussion with the students.
Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018 Page 2 of 10
behavior, coupled with what the deputy had observed while following Janes,
made Deputy Littrell suspect that Janes was impaired. He then requested
additional officers to assist at the scene.
[4] Deputy Heilers and Sergeant Ritchie arrived shortly thereafter. Sergeant
Ritchie testified that when he arrived, he “mentioned that [he] heard a lot of
information about Larry Janes being involved in the drug world” or “with
methamphetamine.” Tr. Vol. II p. 78. After Deputy Littrell ran Janes’s license,
which came back clean, he returned to Janes’s vehicle on the driver’s side,
while Deputy Heilers approached the vehicle on the passenger’s side. Deputy
Littrell gave Janes a verbal warning for failure to dim his headlights. He then
turned and stepped toward his patrol car. Deputy Littrell testified that he then
“went back to the driver’s door and asked the driver if he would give consent to
search the vehicle due to us trying to clean the streets up and recover stolen
items and such.” Id. at 13. Deputy Littrell testified that Janes consented and
then “I advised him if he agreed to giving us consent to search the vehicle, I
asked him and the passenger to open the door and step out and walk to the rear
of his vehicle and the front of mine and stand with Sargent [sic] Ritchie.” Id.
Janes and the passenger complied.
[5] Deputy Littrell’s body camera recorded their exchange:
Deputy Littrell: All right, Larry, here’s your ID back. Like you
said, you know why I pulled you over, right?
Janes: Yeah, it won’t happen again (inaudible) one thing
(inaudible) hard to see anyway.
Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018 Page 3 of 10
Deputy Littrell: All right, you had anything to drink tonight,
anything like that?
Janes: No sir.
Deputy Littrell: No.
Janes: No.
Deputy Littrell: Okay.
Janes: None.
Deputy Littrell: All right, well, I mean nothing illegal in the car?
Janes: Nothing.
Deputy Littrell: No.
Janes: Nope.
Deputy Littrell: Would you give us a chance to look in there?
Janes: Yes, you can look.
Deputy Littrell: Okay, well, if you’ll give us a consent to look, if
you guys want to come out here for us, we’ll take a look real
quick. No guns, knives, weapons, nothing like that?
Appellant’s Ex. 1 (partially transcribed at tr. vol. II p. 45-46).
Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018 Page 4 of 10
[6] Deputies Littrell and Heilers then searched the vehicle. Deputy Heilers found a
methamphetamine pipe underneath the passenger seat. At some point during
the stop, Janes told Deputy Littrell several times that the vehicle was not his.
After the deputies found the pipe, they handcuffed Janes and the passenger.
The deputies also discovered methamphetamine in the vehicle’s trunk and the
passenger’s purse.
[7] On May 26, 2016, the State charged Janes with Level 2 felony dealing in
methamphetamine, Level 3 felony possession of methamphetamine, and Level
4 felony unlawful possession of a firearm by a serious violent felon. On
December 13, 2016, Janes filed a motion to suppress all the evidence seized
during the vehicle search, alleging that the vehicle search violated the federal
and Indiana constitutions because no exception to the warrant requirement
applied to the stop.
[8] A suppression hearing took place on March 8 and May 9, 2017. Janes testified
that the deputy had asked whether “they could look in” his vehicle, and that
Janes had replied affirmatively, thinking that the deputy had wanted to “shine
his flashlight through the window into the back seat and floorboards while we
was sitting in the car.” Tr. Vol. II p. 61-62. Janes also testified that he had told
the deputy several times that the vehicle was not his and that he could not give
him permission to search it. Janes further testified that at no point did any of
the officers tell him that he was free to go, and that at no point did he feel free
to leave.
Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018 Page 5 of 10
[9] On May 31, 2017, the trial court granted the motion to suppress, making the
following findings:
5.) Because Littrell was aware Defendant “may have been
involved in the drug trade”, and after Littrell returned
Defendant’s license to him, Littrell then asked Defendant if he
could “look in there”. Defendant said yes, and Littrell then
asked Defendant and the passenger to get out of the car. After
looking inside the vehicle, Heilers found a “methamphetamine
smoking device” under the passenger seat and upon further
search, other contraband.
6.) According to Littrell, Defendant never withdrew his consent
but he did tell Littrell the vehicle wasn’t his.
7.) The question in this case requires a primary analysis of
whether Defendant was or was not in custody at the time he
allegedly consented to a search of the vehicle, because, whether
Pirtle is required, depends on this answer.
***
9.) . . . Here, the facts were that three (3) uniformed officers in
marked cars, with lights flashing, were on the scene of an
infraction traffic stop, at least one on each side of the vehicle.
Officer Littrell had completed the reason for his stop, but based
on his own knowledge of Defendant’s reputation, decided to
extend his investigation. The Court can only assume what would
have occurred had Defendant driven off. Based on the totality of
the circumstances, the Court finds Defendant was in custody
when Littrell asked if he could “look in there”. Therefore, Pirtle
warnings were required and were not given, and the fruits of the
search of the vehicle are suppressed.
Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018 Page 6 of 10
Appealed Order p. 2-3 (footnote omitted). On June 28, 2017, the State filed a
motion to dismiss the charges based on the trial court’s order, and on July 6,
2017, the trial court granted that motion. The State now appeals the trial
court’s order suppressing the evidence.
Discussion and Decision
[10] The State argues that the trial court erred by suppressing evidence because
Janes was not in custody for purposes of Pirtle and was not entitled to a Pirtle
warning before a consensual search during a traffic stop.3
[11] When reviewing a trial court’s ruling on a motion to suppress evidence, we
must determine whether substantial evidence of probative value supports the
trial court’s decision. State v. Seidl, 939 N.E.2d 679, 683 (Ind. Ct. App. 2010).
Where a trial court grants a motion to suppress, the State appeals from a
negative judgment and must show that the trial court’s grant of the motion was
contrary to law. Id. We will reverse a negative judgment only when the
evidence is without conflict and all reasonable inferences lead to a conclusion
opposite that of the trial court. Id. We will not reweigh the evidence nor judge
witnesses’ credibility, and will consider only the evidence most favorable to the
trial court’s ruling. Id.
3
Although Janes moved to suppress the evidence under the federal and Indiana constitutions, the trial court
granted Janes’s motion based on the Indiana constitution. Therefore, we will discuss the issue only under
Indiana law.
Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018 Page 7 of 10
[12] Pursuant to the Indiana constitution, our Supreme Court held that “a person
who is asked to give consent to search while in police custody is entitled to the
presence and advice of counsel prior to making the decision whether to give
such consent.” Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975).
When a person does not receive this warning, “whether the evidence must be
suppressed turns on whether the defendant was in custody at the time consent
was requested.” Meredith v. State, 906 N.E.2d 867, 873 (Ind. 2009). In
distinguishing between custodial encounters, where Pirtle applies, and non-
custodial encounters, where it does not, the ultimate inquiry is whether there
was a formal arrest or a restraint on freedom of movement of the degree
associated with a formal arrest. Id. “In answering this question, courts consider
all circumstances surrounding the encounter and ‘largely appl[y] an objective
test asking whether a reasonable person under the same circumstances would
believe that she was under arrest or not free to resist the entreaties of the
police.’” Id. (quoting Jones v. State, 655 N.E.2d 49, 55 (Ind. 1995)).
[13] Courts have considered a variety of factors in determining whether an
encounter is custodial. One such factor is whether a reasonable person in the
defendant’s position would feel free to leave. Id. The law is clear that in the
context of a traffic stop a person is, at least temporarily, not free to leave, but
that does not necessarily mean that a traffic stop is custodial. Id. Indeed, an
officer making a traffic stop may detain a person upon reasonable suspicion of
criminal activity and ask questions to verify or disprove his suspicions. Id.
Ordinarily, such detention is not considered custodial even though the person is
Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018 Page 8 of 10
not free to leave. Id. Thus, courts must look to other factors as well to
determine whether and when a traffic stop transforms into a custodial
encounter. Other relevant factors include whether the defendant was read his
Miranda4 rights, handcuffed, restrained in any way, or told that he was a suspect
in a crime; the vigorousness of the law enforcement interrogation; whether
police suggested the defendant should cooperate, implied adverse consequences
for noncooperation, or suggested that the defendant was not free to go about his
business; and the length of the detention. Id. at 874.
[14] Here, the State argues that because Janes was detained for a traffic stop, he was
not in custody when he consented to the search and a Pirtle warning was not
required. Viewed most favorably to the trial court’s decision, the record shows
that three uniformed officers in three separate police cars with flashing lights
came to a traffic stop on a rural highway in the middle of the night. When
Deputy Littrell returned Janes’s license to him, he stood on the vehicle’s
driver’s side, while Deputy Heilers stood on the passenger’s side. In our view, a
person who is stopped for a minor traffic violation for which there was an
unusually high number of responding officers and whose vehicle is then
surrounded by two police officers might reasonably feel that his freedom of
movement was restrained.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018 Page 9 of 10
[15] Moreover, the record also shows that after Deputy Littrell completed the traffic
stop by giving Janes a verbal warning for failure to dim his headlights, he then
asked Janes whether he had had anything to drink that night, whether there was
anything illegal in the vehicle, and whether there were any guns, knives, or
other weapons in the vehicle. A reasonable person, asked incriminating
questions about alcohol consumption, illegal items, and weapons—questions
unrelated to the reason for the traffic stop—could reasonably conclude that he
was not free to deny police permission to search his car. See Sellmer v. State, 842
N.E.2d 358, 364 (Ind. 2006) (noting that a reasonable person, asked repeatedly
about whether there were drugs in the vehicle, “might well conclude either that
he or she was under arrest or, at least, that she was not free to deny police
permission to search her car”).
[16] The trial court, which was in the best position to weigh the evidence and judge
witnesses’ credibility, found that Janes was in custody when he was asked to
consent to a search of his vehicle. We agree that, considering the totality of the
circumstances, a reasonable person would not feel free to leave this scene. As a
result, Janes was entitled to a Pirtle warning, which he did not receive.
Accordingly, the trial court did not err by suppressing the evidence found in the
search.
[17] The judgment of the trial court is affirmed.
May, J., and Altice, J., concur.
Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018 Page 10 of 10