Clarke v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael E. Caudill Steve Carter
Indianapolis, Indiana Attorney General of Indiana

George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court
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No. 49S05-0612-CR-496

MARK CLARKE,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Marion Superior Court, No. 49G20-0409-FA-169079
The Honorable William Young, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0508-CR-435
_________________________________

June 26, 2007

Boehm, J.

We hold that 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 Constitution.
 Facts and Procedural Background

On September 16, 2004, Officer Tanya Eastwood of the Indianapolis Police Department
was dispatched to 3736 North Meridian Street to investigate an anonymous report that “there was
a black car with nice rims in front of the apartment building selling drugs.” She arrived at the
scene and found a black 1995 Nissan Maxima parked in front of the apartment building with two
occupants. Eastwood activated her flashers and placed her spotlight so she could see Mark
Clarke in the driver seat and Joshua Taylor in the back seat on the passenger side. When
Eastwood approached the driver’s side on foot, Clarke had his license and registration “hanging
out the window.”

Eastwood asked Clarke what he and Taylor were doing and how long they had been
parked in front of the apartment. Clarke responded that they had been there about five minutes
and that “he was dropping a passenger off at an apartment building down the street”
approximately one-half block from their current location. Eastwood obtained Taylor’s
identification and returned to her car to run driver’s license and warrant checks on both Clarke
and Taylor. After discovering no outstanding warrants for either, Eastwood returned the
information. She then told Clarke that she had received a “report of narcotics activity” and asked
Clarke if there was anything illegal in the car. When Clarke said “there was not,” Eastwood
asked Clarke “if he cared if [she] searched his car,” and Clarke responded, “I don’t have
anything in the car.” According to Eastwood, she then asked Clarke “Do you mind if I search
it?” and Clarke responded, “No,” and “voluntarily opened his door and got out of the car on his
own.” Eastwood testified that Clarke left his car door open and that his body language indicated
that she had permission to search the car. By this time, a second officer, Townsend, had arrived
and “watched” Clarke and Taylor on the sidewalk while Eastwood conducted the search.
Neither Clarke nor Taylor was physically restrained.

Eastwood found “a large amount of money, divided into several different bundles,
divided by denominations” in the center console of the Nissan. She then requested a narcotics
canine and was told that Park Ranger K9-1 Officer Phillip Greene would be at the scene within
two minutes. In the meantime, Eastwood continued searching the car and “immediately” located
a sandwich baggie containing marijuana. Eastwood asked Clarke why he consented to the search

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if it contained marijuana, and Clarke responded that he “forgot it was in there.” Eastwood then
placed Clarke under arrest.

Officer Greene and his dog arrived at the scene, and the dog promptly indicated that
narcotics were in the vehicle. Officer Greene then located a partially smoked marijuana cigarette
and a baggie containing five individually wrapped baggies that the officers suspected contained
over three grams of cocaine. Eastwood then Mirandized Clarke and Taylor.

After Taylor denied any knowledge of the drugs in the car or any involvement in drug
dealing, Eastwood asked Clarke if there was anything else in the car. Clarke said “no,” and
Eastwood asked him if he wanted to talk with a detective “to help himself out.” Clarke
responded, “No. It’s all over for me now anyway.” While waiting for a police wagon, Clarke
attempted to flee and was apprehended a few blocks away after a chase on foot.

The State charged Clarke with dealing in cocaine, possession of cocaine, misdemeanor
possession of marijuana, and misdemeanor resisting law enforcement. Clarke moved to suppress
the evidence seized from his vehicle. Clarke contended that the seizure violated his rights under
the Fourth Amendment and Article I, section 11 of the Indiana Constitution. Both constitutions
protect citizens against unreasonable searches and seizures of their “effects.” Automobiles are
protected effects under both provisions. Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995). Clarke
argued that Eastwood made an investigatory stop without reasonable suspicion in violation of the
Fourth Amendment and that he was not advised of his rights before being asked to consent to the
search of his car as the Indiana Constitution requires. The State responded that Clarke
voluntarily consented to the search of his car and that he was not in police custody, so the seizure
complied with both constitutions. After a hearing, the trial court found that there was no stop
because the car was parked when Eastwood arrived and that consent was given to search the car.
The trial court therefore denied the motion to suppress but granted Clarke’s request to certify the
order for interlocutory appeal. The Court of Appeals reversed, concluding the search violated
Clarke’s rights under the Fourth Amendment. Clarke v. State, 854 N.E.2d 423, 432 (Ind. Ct.
App. 2006). We granted transfer. Clarke v. State, 860 N.E.2d 599 (Ind. 2006).

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 I. The Fourth Amendment Claim

Terry v. Ohio, 392 U.S. 1 (1968) established that a law enforcement officer must have
reasonable suspicion of criminal conduct in order to justify a traffic stop, which is a “seizure” for
purposes of the Fourth Amendment. An anonymous tip containing no information beyond that
available to the general public does not afford reasonable suspicion. Alabama v. White, 496 U.S.
325, 329-30 (1990); Jaggers v. State, 687 N.E.2d 180, 182-83 (Ind. 1997). Eastwood responded
to an anonymous tip alleging narcotics activity but reporting no facts beyond a description of the
vehicle. The issue, therefore, is whether a seizure occurred before Officer Eastwood gained
additional information sufficient to establish reasonable suspicion. As Terry explained, “not all
personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when
the officer, by means of physical force or show of authority, has in some way restrained the
liberty of a citizen may we conclude that a ‘seizure’ has occurred.” 392 U.S. at 20 n.16. It is
clear that “mere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U.S.
429, 434 (1991); see also Florida v. Royer, 460 U.S. 491, 497 (1983); Terry, 392 U.S. at 19;
Sellmer v. State, 842 N.E.2d 358, 362 (Ind. 2006). The Fourth Amendment is not triggered
unless an encounter between a law enforcement officer and a citizen “loses its consensual
nature.” Bostick, 501 U.S. at 434. The encounter is consensual and reasonable suspicion is not
required if a reasonable person would feel free to “disregard the police and go about his
business.” Id. (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)).

The Court of Appeals concluded that the initial encounter between Clarke and Eastwood
was consensual up to the point at which Eastwood returned Clarke’s license and registration.
The Court of Appeals concluded, however, that the encounter escalated into a seizure based on
four facts: (1) Clarke was not affirmatively told he was free to leave; (2) Eastwood asked an
“incriminating question”—whether Clarke had anything illegal in his vehicle—which Clarke
denied; (3) Eastwood asked to search the car, and Clarke again responded he had nothing illegal;
and (4) Eastwood asked if Clarke “minded” if she searched, and Clarke gave an “ambiguous”
response of “no.” Clarke, 854 N.E.2d at 429-30.

As Bostick explained, summarizing earlier decisions,

even when officers have no basis for suspecting a particular individual, they may
generally ask questions of that individual; ask to examine the individual’s

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 identification; and request consent to search his or her luggage—as long as the
police do not convey a message that compliance with their requests is required.

501 U.S. at 434-35 (citing INS v. Delgado, 466 U.S. 210, 216 (1984); Florida v. Rodriguez, 469
U.S. 1, 5-6 (1984); Royer, 460 U.S. at 501; United States v. Mendenhall, 446 U.S. 544, 557-58
(1980)).

The meaning of Clarke’s response of “no” to whether he would “mind” if his car was
searched is for the trial court to resolve. Bostick, 501 U.S. at 432. Clarke may have
misunderstood the question, but, as phrased, a negative answer is a consent to the search.
Moreover, Eastwood testified that Clarke’s “body language” conveyed a consent, and Clarke
made no effort to change his response. Eastwood therefore reasonably accepted Clarke’s
response as a consent, and the trial court’s finding that consent was given is not clearly erroneous
and is dispositive of that issue. Under Bostick, the Fourth Amendment permits consensual
interrogation “as long as the police do not convey a message that compliance with the requests is
required.” 501 U.S. at 434-35. There is no evidence that Eastwood conveyed that message. Her
mere presence as a uniformed law enforcement officer does not convert her questions into
commands. Id. Accordingly, there was no seizure before Clarke gave consent to the search, and
the search established probable cause to arrest Clarke. This process did not violate the Fourth
Amendment.

II. Indiana Constitutional Claim

There is no federal constitutional right to counsel before consenting to a search even if
the suspect is in custody. United States v. Lagrone, 43 F.3d 332, 337 (7th Cir. 1994). However,
Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975) established that Article I, section 11 of the
Indiana Constitution requires that a person in custody explicitly waive the right to counsel before
giving a valid consent to a search.

Clarke was not advised of his right to counsel before Eastwood asked for consent to the
search of Clarke’s car. If Clarke was in custody, his rights under Pirtle were violated, and the
motion to suppress must be granted. However, a suspect who has been stopped and therefore has
been “seized” for purposes of Article I, section 11 is not necessarily in custody. Cooley v. State,
682 N.E.2d 1277, 1279 (Ind. 1997). In Jones v. State, 655 N.E.2d 49 (Ind. 1995), we explained
the difference between an investigatory stop and police custody. In that case, South Bend police

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received two anonymous tips that Jones was carrying crack cocaine in the gas cap compartment
of his car. Id. at 52. Jones’s vehicle was identified outside a nightclub and three unmarked
police cars and one marked car followed Jones as he left the club. Id. Jones stopped in the
middle of the street to unload a passenger, and Captain Fautz turned on his police lights and
stoplight and stopped Jones to cite him for obstructing traffic. Id. As Fautz approached Jones’s
car, the other officers exited their vehicles. Id. at 52-53. Fautz asked Jones if he could search
Jones’s car but told Jones “he had the right to refuse.” Id. at 53. Jones responded with “Go
ahead,” and Fautz obtained a “permit to search form” from his car, returned to Jones, handed him
a copy, and read the form to him. Id. As he read the form, another officer opened the gas
compartment and discovered baggies of crack inside. Id. Fautz completed reading the first part
of the form, which contained the Miranda rights, and asked Jones if he understood it. Id. When
Jones indicated that he did, Fautz read the second portion of the form, which covered vehicle
searches. Jones then indicated that he did not want his car to be searched. As Fautz turned to
inform the other officers of Jones’s decision, the officer who had found the crack said, “It’s too
late, I’ve already found it.” Id.

Relying primarily on Pirtle, we affirmed the denial of Jones’s motion to suppress.
Although Jones had been stopped, and therefore seized, he had been advised that he could refuse
consent to a search and had been told he was stopped for a traffic violation, not a drug
investigation. Id. at 56. He “was neither arrested nor in police custody.” Id. As a result, his
Pirtle rights had not attached. Id. Similarly, at the time Clarke’s consent was given, he had not
been “seized,” much less placed in custody. Accordingly, his Pirtle rights were not violated. See
also Peterson v. State, 514 N.E.2d 265 (Ind. 1987) (holding that the defendants’ consent was a
valid waiver of Fourth Amendment rights because they were not in custody); Huspon v. State,
545 N.E.2d 1078 (Ind. 1989) (same).

Sellmer v. State, 842 N.E.2d 358 (Ind. 2006), is consistent with our holding today. In
that case we concluded that a reasonable person in Sellmer’s circumstances would believe either
that she was under arrest or, at least, that she was not free to resist the entreaties of the police.
842 N.E.2d at 364. As a result, her consent without a Pirtle advisement violated the Indiana
Constitution. That conclusion rested on six factors, most of which are absent in Clarke’s case.
An anonymous tip described Sellmer’s automobile and alleged that the car was parked in front of
a hair salon and contained a large amount of drugs. Id. at 359. Two Noblesville police officers

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arrived and found a vehicle matching the informant’s description. They saw Sellmer and another
woman leave the car and go into the salon. Id. at 360. The officers entered the salon and asked
Sellmer if she owned the car parked outside. Id. Sellmer answered affirmatively, and the
officers asked her to step outside. Id.

The arresting officer, Roberts, “asked Sellmer for permission to search her car between
three and five times before securing her consent.” Id. at 364. Roberts repeatedly asked
incriminating questions. Id. After informing Sellmer that he had received information regarding
illegal drug activity, Roberts asked her if there were drugs in her car. When Sellmer did not
respond, the officer told her, “It’s in your best interest to cooperate with us and not make us jump
through a bunch of hoops.” Id. He then told her, “If you have nothing to hide here, and the
information we have been given is not true, I’m going to thank you for your time and allow you
to go on your way.” Id. Sellmer asked Roberts “what her options or what rights she had and
what rights the police had.” Id. at 365. The officer did not tell Sellmer that she had the right to
refuse consent. Finally, Sellmer specifically asked, “Do I have to let you search my car?” Id.
Roberts responded, “It would be in your best interest to cooperate if you have nothing to hide.”
Id. Importantly, Sellmer was told she would be “allowed” to go if nothing was found. The
officers thus implied that she was under restraint and refused to give her an answer to her direct
inquiry whether this was the case.

Clarke was presented with no such implication or refusal. Clarke’s encounter with
Eastwood involved neither suggestions that he should cooperate, nor the implication of adverse
consequences for noncooperation, nor any suggestion that he was not free to go about his
business. Eastwood informed Clarke of the “report of narcotics activity,” but this was not as
direct an accusation as the questions asked of Sellmer. Although Clarke was twice asked
whether Eastwood could search his car, Eastwood’s second inquiry was a response to Clarke’s
initial answer “I don’t have anything in the car.” This did not answer Eastwood’s question
whether she was permitted to search the car. It thus presents the reverse situation from Sellmer
where the officer avoided responding to the suspect’s direct question before seeking consent to
search. In sum, Eastwood remained within the confines established by Bostick and had not
seized Clarke, much less placed him in custody. Accordingly, there was no Pirtle violation.

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 Conclusion

We affirm the trial court’s denial of Clarke’s motion to suppress. We summarily affirm
the Court of Appeals as to issues not addressed in this opinion. See Appellate Rule 58(A).

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

Rucker, J., dissents with separate opinion.

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Rucker, Justice, dissenting.

Like the Fourth Amendment to the United States Constitution, the purpose of Article 1,
Section 11 of the Indiana Constitution is not to eliminate all contact between the police and the
citizenry but rather “to prevent arbitrary and oppressive interference by enforcement officials
with the privacy and personal security of individuals.” United States v. Mendenhall, 446 U.S.
544, 553-54 (1980) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976)). Thus
a consensual encounter between a law enforcement officer and an Indiana citizen – in which the
officer makes a casual and brief inquiry – does not implicate Article 1, Section 11. In essence
there is no “seizure” within the meaning of the Indiana Constitution “[a]s long as the person to
whom questions are put remains free to disregard the questions and walk away.” Mendenhall,
466 U.S. at 554; Johnson v. State, 856 N.E.2d 706, 713 (Ind. Ct. App. 2005) (concluding that
police intrusion cannot withstand scrutiny under Article 1, Section 11 of the Indiana Constitution
when an individual no longer remains free to leave the officer’s presence and there is no

indication of reasonable suspicion of any criminal activity afoot); see also Brendlin v. California,
127 S.Ct. 2400, 2406 (2007) (affirming Mendenhall’s free-to-leave test for federal analysis).

In this case the majority concludes no seizure occurred based upon the officer’s
interpretation of Clarke’s body language and that Clarke made no attempt to change his negative
answer to the question of whether he would “mind” if his car was searched. I am of the view
that this observation sheds no light on the question of whether Clarke was seized within the
meaning of Article 1, Section 11. “To the extent that there is anything ambiguous in the show of
force . . . , the [free-to-leave] test resolves the ambiguity” by utilizing the objective test of what a
reasonable person would understand as a display of authority. Brendlin, 127 S.Ct. at 2408.

The record shows Officer Eastwood responded to an anonymous tip of a “black car with
nice rims” parked in front of an apartment building from which someone was selling narcotics.
Tr. at 4. Upon arrival at the apartment building, Officer Eastwood pulled in behind Clarke’s
vehicle, activated the rear flashers and placed the spotlight on the vehicle so she could see what
was inside the parked vehicle before approaching. Tr. at 5. Officer Eastwood asked for
identification and if there was anything illegal in the car before running Clarke’s and the
passenger’s information through the computer. App. at 87. Both answered “no.” Id. After
having found no problems and returning to Clarke his license and registration, Officer Eastwood
did not inform Clarke he was free to leave, nor did she cite him for an infraction or other
violation of the law. Instead Officer Eastwood informed Clarke she was investigating a report of
narcotics activity and asked again if there was anything illegal in the car. Tr. at 8. Clarke
responded “no.” Id. Clarke was then asked whether he cared if she searched his car. He did not
answer the request but again responded that he did not have anything illegal in the car. Id. at 8-9.

At this point I am convinced that no Hoosier could reasonably assume that he or she
could simply walk away. See, e.g., United States v. Drayton, 536 U.S. 194, 212 (2002) (Souter,
J., dissenting) (A later request to search prefaced with “Do you mind . . .” after having been told
by officers that they were conducting a bus interdiction would naturally have been understood by
citizens in the terms with which the encounter began. No reasonable passenger could believe
“that he stood to lose nothing if he refused to cooperate with the police, or that he had any free
choice to ignore the police altogether.”); Combs v. State, 851 N.E.2d 1053, 1059 (Ind. Ct. App.
2006) (finding a reasonable person having pulled over his vehicle without any prompting by the
officer would not have felt free to leave after the officer indicated he was investigating a report
of a suspicious vehicle and asked the driver for identifying information). In essence,
immediately before Clarke gave his equivocal response to the question of whether he would
“mind” if the officer searched his car, he had been seized within the meaning of Article 1,
Section 11. This is so because neither he nor any other Indiana citizen in his circumstance could
have felt free to disregard the officer’s questions and leave the scene. And because the officers
lacked reasonable suspicion to seize Clarke, their subsequent search of his car without a warrant
was constitutionally infirm unless there was an exception to the warrant requirement.

The State contends there was such an exception, namely consent to search. See
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (stating it is well-settled that a consent to
search is an established exception to the warrant and probable cause requirement); Perry v. State,
638 N.E.2d 1236, 1240 (Ind. 1994) (“[A] valid consent to search obviates the warrant
requirement.”). It is of course the case that even under circumstances of a routine traffic stop,
the Indiana Constitution does not prohibit a police officer at the conclusion of the stop, without

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any independent reasonable suspicion of illegal activity, from seeking consent to search the car.
See Callahan v. State, 719 N.E.2d 430, 439 (Ind. Ct. App. 1999). The same is true here even
though, as the trial court noted, there was no traffic stop because Clarke’s car was already parked
when officers arrived on the scene. The underlying rationale for this rule is that where an
individual gives permission to search either his person or property, the governmental intrusion is
deemed presumably reasonable. Jones v. State, 655 N.E.2d 49, 54 (Ind. 1995).

But we have held that under the Indiana Constitution “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, 323 N.E.2d
634, 640 (1975); see also Sims v. State, 274 Ind. 495, 413 N.E.2d 556, 559 (1980) (A person in
custody must be informed of the right to consult with counsel about the possibility of consenting
to a search before a valid consent can be given.). To determine whether a defendant is in custody
“we apply an objective test asking whether a reasonable person under the same circumstances
would believe themself to be under arrest or not free to resist the entreaties of the police.”
Torres v. State, 673 N.E.2d 472, 474 (Ind. 1996) (emphasis added, quotation omitted). Stated
somewhat differently, a person is not in custody where he or she is “unrestrained and ha[s] no
reason to believe he [or she] could not leave.” Huspon v. State, 545 N.E.2d 1078, 1081 (Ind.
1989).

In this case the majority distinguishes between “custody” and “seizure” concluding that
“Pirtle advisements” are required for the former, but not the latter. I see no principled distinction
between the two. By whatever nomenclature, the key question to be asked is whether the person
is entitled to disregard police questioning and walk away. If not, then the person must be
informed of the right to consult with counsel about the possibility of consenting to a search.
Otherwise no valid consent can be given. Indeed the primary authority on which the majority
relies makes this very point. Discussing Jones, 655 N.E.2d at 56, the Court in Cooley v. State,
682 N.E.2d 1277, 1279 (Ind. 1997), recognized, “Had Jones refused to give the police
permission to search, he would have been given two citations and been free to leave.” In this
case Clarke had no such option. And because he was not given a Pirtle advisement any alleged

3
consent was invalid as a matter of state law. Accordingly, I agree with the result reached by the
Court of Appeals and would reverse the trial court’s denial of Clarke’s motion to suppress.

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