Campos v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kathleen M. Sweeney Steve Carter
Indianapolis, Indiana Attorney General of Indiana

Ann L. Goodwin
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court FILED
Apr 30 2008, 2:32 pm
_________________________________
CLERK
No. 45S03-0804-CR-199 of the supreme court,
court of appeals and
tax court

SERGIO CAMPOS,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________

Appeal from the Lake County Superior Court, No. 45G01-0507-FA-0035
The Honorable Salvador Vasquez, Judge
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-0605-CR-211
_________________________________

April 30, 2008

Boehm, Justice.

This case involves a traffic stop resulting in a vehicle search that uncovered cocaine. We
hold that there was no probable cause to conduct the search, so consent was required. Because
the officer communicated to the occupants of the car that consent to search was “necessary,” the
ensuing purported consent was invalid. The search therefore violated both the Indiana and Fed-
eral Constitutions, and the seized cocaine may not be admitted in evidence.
 A second issue arises because the two occupants of the car were seated in a police cruiser
while the search proceeded, and they made incriminating statements which were recorded on the
cruiser’s video-tape of the stop. The recorded statements are admissible in evidence. Although
the statements were an indirect product of an unlawful search, they were freely given and not the
result of unlawful interrogation.

Facts and Procedural History

On the morning of July 28, 2005, driver Cesar Santiago-Armendariz and passenger Ser-
gio Campos were traveling in a Chevy Malibu on Interstate 80/94 in Lake County, Indiana. Of-
ficer Alfred Villarreal of the Lake County Highway Interdiction Unit clocked the vehicle at
sixty-nine miles per hour in a fifty-five mile per hour zone. Villarreal paced the Malibu for
about half a mile before pulling it over, parking his patrol car behind it, and activating an in-car
video camera that recorded the entire stop. Villarreal approached the driver’s side window and
asked Santiago for his license and registration. Villarreal noticed that Santiago’s hand was
“shaking” as Santiago produced his paperwork. Villarreal then asked Santiago to have a seat in
the police car. Santiago complied, but Campos remained in the Malibu. At some point, Villar-
real reviewed the car’s registration and ran a check of the car’s license plate.

As Villarreal filled out a warning for the speeding violation, he asked Santiago where he
and Campos were coming from, and Santiago said that the two were returning from the airport.
Villarreal asked who the passenger was, and Santiago responded that it was his friend, Sergio
Campos. Villarreal then asked who owned the car, and Santiago said it belonged to Campos’s
brother, Daniel. Villarreal asked which airport the two had come from, and Santiago responded
that it was “not the big one, but the little one” in Chicago. Santiago repeated that the car be-
longed to Campos’s brother, this time replying affirmatively to Villarreal’s question whether the
brother’s name was Jose Gonzalez, apparently the name obtained from the car’s registration.

At this point, Villarreal left the patrol car to question Campos, who had remained in the
Malibu’s passenger seat. At Villarreal’s request, Campos produced some identification. Villar-
real asked Campos if the airport they were returning from was “O’Hare, the big one?” Campos
replied, “Yeah.” In response to questioning, Campos said he and Santiago were coming from the
airport where they had just dropped off his mother, who was flying Mexicana Airlines. Villar-

2
real testified that he knew that Mexicana, as an international airline, used only O’Hare, Chi-
cago’s largest airport. Campos also said that the car was his brother’s and he had permission to
use it.

Villarreal then returned to the police car and resumed questioning Santiago. After Villar-
real told Santiago that O’Hare was the big airport, Santiago repeated that he and Campos had just
returned from the airport in Chicago, but “not the big one.” Villarreal testified that he “made a
mental note of [Santiago’s] moving around in my chair” when asked about the purpose of his
trip.

Villarreal ran warrant checks on both Santiago and Campos and determined that the car
was not reported stolen. Villarreal then “had” Santiago exit the vehicle, returned Santiago’s
driver’s license and the car registration with a copy of the warning, and told Santiago to “gain
some speed” before pulling back out into traffic and to “drive safe.” Santiago thanked Villarreal
and shook his hand. Villarreal testified that at that point Campos and Santiago were free to go
“[i]n their mind.”

As soon as Santiago turned to walk back toward the Malibu, Villarreal said, “Excuse me,
sir, do you all have anything illegal in the car?” When Santiago replied in the negative, Villar-
real asked him for consent to search the car. Santiago asked, “Is it really necessary?” Villarreal
responded, “Yes.” Santiago then gave a response that is not audible on the video, but, according
to Villarreal, was, “Okay.”

It appears from the video that Campos could not have heard the exchange between Santi-
ago and Villarreal, and no one claims he did. Villarreal told Santiago to have a seat in the police
car and then returned to the Malibu to ask Campos for consent to search the car. Campos told
Villarreal to ask Santiago, and Villarreal responded, “Well, he gave me consent.” Campos’s re-
ply, like Santiago’s response to the request for consent, is inaudible on the tape, but Villarreal
testified that Campos then said, “Okay.” Villarreal asked Campos to join Santiago in the police
car. While Villarreal searched the car, Campos and Santiago held a conversation in the police
cruiser that was recorded on the video, apparently without their knowledge. The conversation is
audible, but is in a mixture of Spanish and English and no translation is in the record. Campos

3
stipulated that the tape contains “damaging admissions” and his brief describes the exchange as
the two talking “freely in Spanish making admissions about the drugs.”

Villarreal found a brick-shaped package of cocaine in the trunk of the Malibu. Campos
was charged with Dealing in Cocaine, a Class A Felony. Campos moved to suppress the co-
caine, contending that the search violated both the Fourth Amendment and article I, section 11 of
the Indiana Constitution. He also moved to suppress the recording of his statements to Santiago
in the patrol car, contending the recording violated both the Fifth Amendment and article I, sec-
tion 14 of the Indiana Constitution. After a suppression hearing, the trial court denied Campos’s
motion to suppress the evidence obtained from the car, holding that Campos lacked standing to
challenge the search, and, alternatively, that Campos had waived his claim to standing by leaving
the decision to search to Santiago. The trial court also denied the motion to suppress Campos’s
statements recorded in the police cruiser on the ground that Campos did not have an expectation
of privacy in the cruiser.

Campos was granted leave to file an interlocutory appeal. He argued that he had standing
to contest the search of the vehicle, that he was illegally detained by Villarreal, and that Villar-
real had violated the Indiana Constitution by failing to advise him of his right to counsel before
seeking consent to the search. Campos also challenged the admission of his statements recorded
in the police car before a Miranda warning was given. The State responded that Villarreal had
reasonable suspicion to detain Campos after the traffic stop had ended; Campos had no standing
to contest the vehicle search; Campos waived any claim to standing to contest the search; no Pir-
tle warning was required because Campos was not in custody when he gave consent; Campos
was not subjected to interrogation so no Miranda warning was required; and Campos had no ex-
pectation of privacy in the police cruiser. The Court of Appeals affirmed, holding that Campos
lacked standing to challenge the search, Villarreal had reasonable suspicion to continue the de-
tention, and the statements made in the police car did not require Miranda warnings. Campos v.
State, 867 N.E.2d 676, 681-83 (Ind. Ct. App. 2007). Judge May dissented, concluding that the
search of the Malibu was unconstitutional both because Campos’s delayed detainment consti-
tuted a second stop that was not supported by reasonable suspicion, and, although Campos was
in custody after Villarreal told Santiago that a search of the car was “necessary,” he was not ad-

4
vised of his right to an attorney. Id. at 683-90. We grant transfer by order concurrent with this
opinion.

Standard of Review

We review de novo a trial court’s ruling on the constitutionality of a search or seizure.
Myers v. State, 839 N.E.2d 1146, 1150 (Ind. 2005). However, we give deference to a trial
court’s determination of the facts, which will not be overturned unless clearly erroneous. Id.
Thus, we do not reweigh the evidence, but consider conflicting evidence most favorably to the
trial court’s ruling. State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006).

I. The Search of the Malibu

Many search and seizure issues are resolved in the same manner under both the Indiana
and Federal Constitutions. The search of the Malibu presents some in that category. These are
addressed in Part I. A. Part I. B deals with issues unique to Indiana law under article I, section
11.

A. Issues Common to Both Indiana and Federal Search and Seizure Doctrines

1. Reasonable Suspicion to Detain A traffic stop is a “seizure” subject to the constraints
imposed by both the Indiana and Federal Constitutions. One exception to the warrant require-
ment for a seizure is an investigatory stop based on reasonable suspicion. Baldwin v. Reagan,
715 N.E.2d 332, 337 (Ind. 1999); Terry v. Ohio, 392 U.S. 1, 30-31 (1968). “Reasonable suspi-
cion exists where the facts known to the officer, together with the reasonable inferences arising
from such facts, would cause an ordinarily prudent person to believe that criminal activity has or
is about to occur.” Baldwin, 715 N.E.2d at 337. Campos concedes that Villarreal had reason-
able suspicion to support the initial stop for speeding. Campos argues that his and Santiago’s
detention based on the traffic violation concluded when the warning was given to Santiago and
that Villarreal’s subsequent interrogation constituted a second stop that was not based on reason-
able suspicion and therefore violated both the Indiana and Federal Constitution.1

1
Campos and the State both state that this claim was not raised in the trial court. However, we agree with
the Court of Appeals that this issue was presented in “Defendant’s Memorandum in Support of Motion to
Suppress Evidence.”

5
 The State does not challenge Campos’s assertion that Villarreal needed reasonable suspi-
cion to detain Campos after the traffic violation portion had concluded. Instead, the State claims
that Villarreal had reasonable suspicion to detain Campos, and the Court of Appeals agreed.
Campos v. State, 867 N.E.2d 676, 682 (Ind. Ct. App. 2007). Reasonable suspicion, like probable
cause, is a highly fact-sensitive inquiry.2 Nervousness, demonstrated through shaking and
fidgeting, in combination with the inconsistent stories regarding both the recent trip to the airport
and the name of the car’s owner, could support a finding that Villarreal had reasonable suspicion
to detain Campos. But the trial court made no finding regarding reasonable suspicion.

We do not need to resolve the issue of reasonable suspicion. Assuming Villarreal had
reasonable suspicion to continue detainment of Campos and Santiago, he still did not possess the
higher degree of certainty required for probable cause to search the vehicle under the federal

Campos also argues that Villarreal had no right to ask Campos to produce identification. Because
Campos was seized when Santiago was seized, it was not unreasonable for Villarreal to ask for identifica-
tion. See Cade v. State, 872 N.E.2d 186, 188-89 (Ind. Ct. App. 2007); U.S. v. Ellis, 497 F.3d 606, 613-14
(6th Cir. 2007).
2
Precedent gives some guidance on various factors that contribute to reasonable suspicion. For example,
an inconsistent answer regarding present purpose or destination “casts suspicion and doubt on the nature
and legitimacy of the activity being investigated.” Quirk v. State, 842 N.E.2d 334, 342 (Ind. 2006) (quot-
ing United States v. Jones, 269 F.3d 919, 928 (8th Cir. 2001)). And, while nervousness alone is not
enough, nervousness can constitute reasonable suspicion when combined with other factors. Finger v.
State, 799 N.E.2d 528, 534-35 (Ind. 2003). Thus, in Quirk this Court upheld the trial court’s grant of de-
fendant’s motion to suppress, finding that Quirk’s nervousness combined with a handwritten bill of lad-
ing, past use of aliases, criminal history of transporting controlled substances, lies about his criminal his-
tory, and driver’s license from a state known for narcotics, did not constitute reasonable suspicion. 842
N.E.2d at 340-43. However, in Finger, this Court found reasonable suspicion when nervousness was
combined with an anonymous tip that Finger’s car was “suspicious,” Finger claimed he was out of gas but
his gauge was not on low, and the driver and passenger gave inconsistent stories about their presence.
799 N.E.2d at 534-35. In this case, Villarreal testified that
Mr. Santiago conversed with me, and I made a mental note of his moving around in my
chair as I asked him about questions about the purpose of his trip. And my clarifying
questions confirmed to me that I had two different stories. It caused suspicion in my
mind, everything from the beginning of the traffic stop when I approached him when he
fumbled his paperwork, his shaking of the hand when he gave me the – all the informa-
tion back to me, to the purpose of his trip. He didn’t know who the vehicle belonged to.
He said it belonged to the passenger’s brother. Mr. Campos’ brother. He told me his
name was Daniel. I looked at the registration, I even ran the plates to make sure there
was no – is there a Daniel here. The registration didn’t match anything that the driver
told me. Speaking to the passenger, Mr. Campos, he tells me a completely different story
about O’Hare Airport. This was all – this all together gave me – I became very suspi-
cious of what was going on here, if I had more than just a speeder on the interstate.

6
“automobile exception” to the warrant requirement. See Carroll v. United States, 267 U.S. 132
(1925). Nor did Villarreal have the evidence of a drug-sniffing dog or other confirmatory evi-
dence sufficient for the Indiana totality of the circumstances test to search the car without a war-
rant. See Myers v. State, 839 N.E.2d 1146 (Ind. 2005). As a result, the search of the Malibu was
lawful only if Villarreal obtained valid consent. We discuss consent in Part 3.

2. Standing to Challenge the Search Standing to challenge a search or seizure under arti-
cle I, section 11 differs in some respects from standing to assert a Fourth Amendment claim.
Specifically, the Indiana Constitution provides protection for claimed possessions irrespective of
the defendant’s interest in the place where the possession was found. Peterson v. State, 674
N.E.2d 528, 534 (Ind. 1996). This difference is not at issue here, and we believe federal prece-
dent addressing standing of a passenger asserting an interest in a searched vehicle is equally ap-
plicable under the Indiana Constitution.

The State does not contest Campos’s standing to challenge his detention after the traffic
stop had concluded. Passengers are allowed to challenge any part of a vehicle stop under either
the Indiana or Federal Constitutions because they are essentially seized when the driver is seized.
Brendlin v. California, 127 S. Ct. 2400, 2403 (2007); see Osborne v. State, 805 N.E.2d 435, 439
(Ind. Ct. App. 2004). The State does, however, argue that Campos has no standing to challenge
the search of the car. The Court of Appeals agreed that although Campos had standing to chal-
lenge the stop, he lacked standing to challenge the search of the Malibu. Campos, 867 N.E.2d at
680.

To challenge a search “a defendant must establish ownership, control, possession, or in-
terest” in the premises searched. Peterson, 674 N.E.2d at 532-34. The defendant must show a
subjective and objective expectation of privacy in the premises. Smith v. Maryland, 442 U.S.
735, 740 (1979). Passengers in a car driven by the owner do not have standing to challenge a
search of the car. Pollard v. State, 270 Ind. 599, 604, 388 N.E.2d 496, 502 (1979) (quoting
Rakas v. Illinois, 439 U.S. 128, 148-49 (1978)). Correspondingly, a driver who is not the owner
has no standing if the owner is also in the car. See United States v. Jefferson, 925 F.2d 1242,
1249 (10th Cir. 1991); United States v. Lochan, 674 F.2d 960, 965 (1st Cir. 1982) (driver had no
standing even though had been on a long trip and had the registration, because there was no lug-
gage in the car, car had not been used on multiple trips, and owner was also in the car). If the

7
owner is absent, a driver with permission of the owner may have standing. See United States v.
Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990) (petitioner had standing because owner had
loaned him the car); see also United States v. Williams, 714 F.2d 777, 779 n.1 (8th Cir. 1983)
(petitioner had standing because of permission on that day and on previous occasions to drive
uncle’s girlfriend’s car); United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir. 1980), cert. de-
nied, 450 U.S. 1043 (1981) (petitioner who had borrowed car from friend had standing). In sum,
we agree that “[w]here the defendant offers sufficient evidence indicating that he has permission
of the owner to use the vehicle, the defendant plainly has a reasonable expectation of privacy in
the vehicle and standing to challenge the search of the vehicle.” Rubio-Rivera, 917 F.2d at 1275.

In Hester v. State, the Court of Appeals relied on a presumption that a driver has standing
unless there is evidence to the contrary. 551 N.E.2d 1187, 1189 (Ind. Ct. App. 1990). The court
found standing established based on a lack of evidence that the driver did not have the owner’s
permission. Id. Most courts, however, require some evidence of permission to possess the vehi-
cle in order to establish standing. Compare United States v. Martinez, 808 F.2d 1050, 1056 (5th
Cir. 1987) (standing found when owner-boyfriend testified that defendant had permission to use
the car), and United States v. Griffin, 729 F.2d 475, 483 n.11 (7th Cir. 1984), cert. denied, 469
U.S. 830 (1984) (non-owners had standing where petitioners had permission to drive and exclu-
sive control over the vehicle that day), with United States v. Figueroa-Espana, 511 F.3d 696, 704
(7th Cir. 2007) (no standing where defendant could not identify the owner of the vehicle and
produced no evidence of permission to use the vehicle or a valid driver’s license), and United
States v. Valdez Hocker, 333 F.3d 1206, 1209 (10th Cir. 1987) (no standing because non-owner
did not establish “that he gained possession from the owner or someone with authority to grant
possession”). In United States v. Miller, 821 F.2d 546, 548 (11th Cir. 1987), the court found the
driver of a borrowed car had standing because the driver had testified that he had consent to
drive the car and the government had introduced no evidence to the contrary. In response to the
state’s contention that the driver’s assertions were insufficient to establish standing, the court
noted
The holding that the government advocates would mean that a perfectly innocent
citizen who, say, borrowed a neighbor’s car with permission, would not have
standing to challenge a search of that car. We are not willing to require such a
citizen to forego his or her Fourth Amendment rights or obtain some form of

8
 signed affidavit that could be presented to a law enforcement officer to establish
legitimate possession of the car.
Id. at n.2.

We agree with the reasoning of the court in United States v. Miller. The only evidence in
the record regarding the ownership of the car comes from Campos and Santiago. Specifically,
both Campos and Santiago told Villarreal that the car was Campos’s brother’s and Campos said
he had permission to use it. The State has produced no evidence that the car is not Campos’s
brother’s or that Campos did not have permission to use it. Accordingly, Campos has standing to
challenge the search of the car.

3. Consent A warrantless search based on lawful consent is consistent with both the Indi-
ana and Federal Constitutions. Perry v. State, 849 N.E.2d 1236, 1240 (Ind. 1994); Schneckloth
v. Bustamonte, 412 U.S. 218, 219 (1973). The state has the burden of proving “that the consent
was in fact voluntarily given, and not the result of duress or coercion, express or implied.”
Schneckloth, 412 U.S. at 248; accord Kubsch v. State, 784 N.E.2d 905, 917-18 (Ind. 2003).
“Voluntariness is a question of fact to be determined from all the circumstances.” Schneckloth,
412 U.S. at 248-49; accord Callahan v. State, 719 N.E.2d 430, 435 (Ind. Ct. App. 1999).

This somewhat elusive standard can present difficult issues. See generally 4 Wayne R.
LaFave, Search & Seizure § 8.2 (4th ed. 2004) (collecting cases). However, this is not a close
case. In Bumper v. North Carolina, the United States Supreme Court held that consent was inva-
lid where it was given after a police officer said he possessed a warrant, but no warrant was ever
produced. 391 U.S. 543 (1968). The Court held that “[w]hen a law enforcement officer claims
authority to search a home under a warrant, he announces in effect that the occupant has no right
to resist the search. . . . Where there is coercion there cannot be consent.” Id. at 550. By telling
Santiago that a search of the car was “necessary,” Villarreal announced, in effect, that Santiago
had “no right to resist the search.” Santiago’s consent, therefore, was invalid.

Campos was the person authorized by its owner to control the use of the car. Villarreal
therefore needed valid consent from Campos in order to search the car, and apparently recog-
nized that need. When asked for consent to search the vehicle, Campos told Villarreal to ask
Santiago. It was only after Villarreal told Campos that Santiago had consented that Campos said

9
“Okay.” Campos was not told that it was “necessary” to search, but that fact did not render
Campos’s consent valid. In Conner v. State, consent was given only after an invalid search war-
rant was presented. 201 Ind. 256, 257-59, 167 N.E. 545, 545 (1929). As in Bumper, consent
based on a misrepresentation of authority was deemed invalid. Id. at 258-59, 167 N.E at 545-49.
Campos’s consent was based on Villarreal’s representation that Santiago had given consent. Be-
cause Santiago’s consent was defective, so also was Campos’s.

4. Waiver The trial court held that even if Campos had standing to object to the search,
he waived it by making his answer dependent on Santiago’s. Standing is a personal right, and as
such, can be waived or abandoned. Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994), abrogated
on other grounds by Litchfield v. State, 824 N.E.2d 356 (Ind. 2005). We do not agree that stand-
ing was waived in this case. The officer asked Campos for consent to search the vehicle, and
Campos said to ask Santiago. It was only after Villarreal told Campos that Santiago had con-
sented that Campos himself consented. We agree with Campos that “[t]his exchange proves
Campos’s agreement with Santiago’s decision, not forfeiture.” Otherwise stated, Campos’s re-
sponse indicated willingness to accept Santiago’s decision as to consent. Campos’s consent was
valid only to the extent that Santiago’s was and as explained in Part 3, Santiago’s purported con-
sent was not.

We therefore find the search to violate both article I, section 11 of the Indiana Constitu-
tion and the Fourth Amendment, and all evidence seized from it must be suppressed. See Quirk
v. State, 842 N.E.2d 334, 343 (Ind. 2006); Weeks v. United States, 232 U.S. 383 (1914).

B. Indiana’s Pirtle Warning

Article I, section 11 of the Indiana Constitution “requires that a person in custody explic-
itly waive the right to counsel before giving a valid consent to a search.” Clarke v. State, 868
N.E.2d 1114, 1119 (Ind. 2007) (citing Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634, 640
(1975)). Campos argues that his consent to search the Malibu was invalid because he did not
receive a “Pirtle warning,” and did not waive the right to counsel before consenting to the search.
As is often the case, the issue here is whether the defendant is in custody, which requires a Pirtle
warning, or is merely the subject of an investigative stop, which requires no warning.

10
 There is no bright line test “for determining when an investigatory detention moves be-
yond merely a Terry stop and becomes an arrest or custodial interrogation.” Jones v. State, 655
N.E.2d 49, 55 (Ind. 1995). Custody is determined by an objective test: whether reasonable per-
sons under the same circumstances would believe they were in custody or free to leave. Id. In
Jones, police cars stopped in front of Jones’s car. Id. at 52. The police took Jones’s license and
asked him to step out of the car. Id. Even though no Pirtle warning was given, we held that
there was no Pirtle violation because, although Jones had been seized, he was not in custody, and
the police informed Jones of his right to refuse to consent. Id. at 56. In Clarke, we also upheld
consent given without a Pirtle warning. 868 N.E.2d at 1121. In that case, the police responded
to an anonymous tip about a parked black car. Id. at 1116. The police officer activated her
flashers and walked over to the car, where Clarke gave her his driver’s license and registration.
Id. After the officer ran Clarke’s identification through the system, she questioned him about
what he was doing there and whether there was anything illegal in the car. Id. at 1116-17. When
Clarke said there was nothing illegal in the car, the officer asked for consent to search, and
Clarke consented. Id. at 1117. We held that Clarke’s consent was valid because “a police officer
who neither explicitly nor implicitly communicates that a person is not free to go about his or her
business may ask questions of the person to investigate allegations of criminal activity without
implicating the Fourth Amendment or requiring the advisement of rights under the Indiana Con-
stitution.” Id. at 1116. However, in Sellmer v. State, consent was held invalid because no Pirtle
warning was given. 842 N.E.2d 358, 365 (Ind. 2006). In that case, the police never answered
Sellmer’s questions about her right to refuse consent, told Sellmer that it was in her “best interest
to cooperate” with them, and that they would “allow” her to go on her way if they did not find
anything. Id. at 364-65. We found that Sellmer was in custody because a person in Sellmer’s
position would not believe that she was free to disregard the police request. Id.

When Villarreal told Santiago that it was “necessary” to search his car, no reasonable
person would think that he had the right to leave or to decline Villarreal’s request. Therefore,
Santiago was in custody. It is conceded that Santiago did not receive a Pirtle warning. Thus,
there was a Pirtle violation with regard to Santiago. Although Santiago was effectively in cus-
tody after Villarreal said the search was “necessary,” Campos had remained in the Malibu and
was merely being detained under an investigatory stop. He was not told that his compliance was
necessary, so he was not in custody. Accordingly, there was no Pirtle violation at the time that

11
Campos was asked to consent to the search. The consent was, however, invalid for the reasons
given in Part A. 3.

II. Statements Recorded While in the Police Car

Campos argues that his statements recorded while in the police cruiser should be sup-
pressed as a violation of his Fifth Amendment right to silence.3 Statements are protected under
both the Fourth and Fifth Amendments and may be inadmissible as self-incrimination under
Miranda or as the product of duress, coercion, or an unconstitutional search. Brown v. Illinois,
422 U.S. 590, 600-02 (1975). Incriminating statements made pursuant to an illegal search can be
admissible, however, if the statements are voluntary under the Fifth Amendment and “suffi-
ciently an act of free will to purge the primary taint of the unlawful invasion” under the Fourth
Amendment. Id. at 599 (quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963)).

Although Campos’s statements were made after an unlawful search and accompanying
seizure, they were voluntary and freely given without duress or coercion. They therefore were
not “tainted” by the unlawful search and detention. Campos argues that the admission of his
statements nevertheless violated the Fifth Amendment because he did not receive a Miranda
warning of his right to remain silent. Miranda warnings must be given to people in police cus-
tody before interrogation. However, “[p]olice officers are not required to give Miranda warnings
unless the defendant is both in custody and subject to interrogation.” Ritchie v. State, 875
N.E.2d 706, 716 (Ind. 2007). Villarreal posed no questions to Campos or Santiago while the two
were in the car and Villarreal was searching the Malibu. Because Campos was not under inter-
rogation, there was no Miranda violation.

The recording is also challenged as an unlawful search. To challenge the admission of
the statements under the Fourth Amendment as an illegal search, Campos must establish both a
subjective and objective expectation of privacy in the place “searched,” i.e., the police cruiser.
In United States v. McKinnon, 985 F.2d 525, 526 (11th Cir. 1993), cert. denied, 510 U.S. 843

3
Campos argues that the recording of his statements also violated article I, section 14 of the Indiana Con-
stitution but provides no cases or analysis addressing this provision, so we decline to address it. The only
Indiana case cited, Packer v. State, 800 N.E.2d 574 (Ind. Ct. App. 2003), deals with federal and Indiana
wiretapping statutes. Campos failed to raise any argument based on these statutes in the trial court. As a
result, these contentions are not available on appeal.

12
(1993), McKinnon was a passenger in a vehicle stopped for a traffic violation. McKinnon was
“invited” by the police to sit in their police cruiser after the driver consented to a search. Id.
Unbeknownst to McKinnon and the driver, the police activated a tape recorder inside the police
cruiser. Id. While the police were searching the vehicle, McKinnon and the driver engaged in an
incriminating conversation. Id. The police found cocaine in the vehicle, and arrested both
McKinnon and the driver. Id. After the arrest, McKinnon and the driver, still in the police
cruiser, engaged in a second incriminating conversation. Id. The court held that both groups of
statements were admissible because McKinnon had no reasonable or justifiable expectation of
privacy in the police cruiser. Id. at 527-28; see also State v. Smith, 641 So.2d 849, 852 (Fla.
1994); State v. Wischnofske, 878 P.2d 1130, 1133-34 (Or. Ct. App. 1994); State v. Turner, 641
S.E.2d 436, 437 (S.C. 2007); State v. Morgan, 929 S.W.2d 380, 384 (Tenn. Crim. App. 1996).
In United States v. Clark, the Eighth Circuit agreed with McKinnon, explaining, “A police car is
not the kind of public place, like a phone booth, where a person should be able to reasonably ex-
pect that his conversation will not be monitored.” 22 F.3d 799, 802 (8th Cir. 1994) (internal cita-
tions omitted). Campos seeks to distinguish McKinnon on the ground that Campos was in cus-
tody at the time of the statements. McKinnon made statements both before and after his arrest.
McKinnon, 985 F.2d at 526. The court held that there was no difference between the two for this
purpose. Id. at 528. We agree. In sum, Campos’s statements were voluntary under the Fifth
Amendment and he had no expectation of privacy in the police cruiser under the Fourth
Amendment. Accordingly, Campos’s statements are admissible.

Conclusion

The trial court’s denial of Campos’s motion to suppress the evidence gathered during the
automobile search is reversed. The trial court’s denial of Campos’s motion to suppress the
statements made in the police cruiser is affirmed. This case is remanded to the trial court for fur-
ther proceedings consistent with this opinion.

Shepard, C.J., and Dickson and Sullivan, JJ., concur.

Rucker, J., concurs except as to Part I. B, in which he concurs in result.

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