Two SCOTSI Opinions from last week involve a constriction or pruning of Article 1 Section 11 of the Indiana Constitution. Language within Section 11 closely mirrors Fourth Amendment language. Still, the SCOTSI has consciously chosen to give Section 11 an independent interpretation with respect to protection from unreasonable search and seizure. That independent interpretation sometimes affords broader protection than the Fourth Amendment. The CLB has advised lawyers in search and seizure disputes to add a Section 11 argument in the trial court and on appeal.
One manifestation of the independent interpretation of Section 11 is found in Pirtle v. State, 323 N.E.2d 634 (Ind. 1975). In that case the SCOTSI held that an individual who is in custody¹ and whose consent is solicited for a search is first entitled to the advisement that he has the right to the presence and aid of counsel before giving such consent.
The first of the dual Section 11 decisions of last week is Dycus v. State, decided October 2, 2018 in the SCOTSI. The second of the dual Section 11 decisions of last week is Wright v. State, decided October 4, 2018 in the SCOTSI. Both cases had been reviewed in the CLB (on the COA level) by way of Appellate Case Notes. Dycus, decided December 29, 2017 is reviewed in the final 2017 Appellate Case Note. Wright, decided January 24, 2018, is reviewed in the sixth Appellate Case Note of 2018 titled “Attenuated Fruit, Anyone?”
In each of the two cases the SCOTSI unanimously slapped down a COA decision gently expanding the known boundaries of Section 11 protections. Dycus was a Pirtle case while Wright was an attenuation case. It is difficult to say that the SCOTSI decided wrongly when both cases were (arguably) matters of first impression in the SCOTSI and when Section 11 has whatever meaning bestowed upon it by the SCOTSI. Still, the official position of the CLB is disappointment, particularly as to the holding in Dycus.
The Dycus Analysis
The Dycus Opinion reminds us that the Pirtle doctrine has been applied by the SCOTSI to consent searches of homes and motor vehicles, but not people. For instance, field sobriety testing, “chemical”² breath tests, blood draws, and cheek swabs are searches (or seizures) of a sort not requiring a pre-consent Pirtle advisement.
Monica Dycus was detained after driving around Indianapolis pursing and harassing a former boyfriend. There were grounds to suspect her of drug use (as in driving under the influence). An officer requested and received Monica’s consent to administration of a “Drug Recognition Evaluation” (DRE) described as moderately invasive, quasi-medical, and requiring around thirty minutes to complete. The officer concluded that Monica was under the influence of marijuana. The officer then requested and received Monica’s consent to a hospital blood draw. The conclusion of the blood testing was that Monica’s blood was positive for THC.
Monica Dycus was charged and convicted for operating a vehicle with a Schedule I or II controlled substance (or metabolite) in the body. The trial court had overruled her objection to admission of evidence of the DRE and derivative blood testing on grounds that no pre-consent Pirtle warning had been given. The COA reversed before the SCOTSI affirmed the trial court on the notion that the moderately invasive, quasi-medical, and time-consuming DRE is not the sort of search to which the Pirtle doctrine applies. The CLB regards a DRE procedure as more than “minimally intrusive” and holds that public policy favors Pirtle applicability.
The Wright Analysis
The Opinion in Wright waxes scholarly and serves as a good source of early exclusionary rule jurisprudence in Indiana under Section 11 and the related “fruit of the poisonous tree” doctrine, itself limited by the Fourth Amendment’s attenuation doctrine. The context in Wright begins with a warrant to search 220 ½ East Water Street in Hartford City. The warrant was obtained on evidence that an IP (Internet Protocol) address located at and billed to 220 ½ East Water Street had accessed known child porn sites.
When the search warrant was served, FBI Special Agent Robertson discovered that part of the large home housed two smaller apartments. The downstairs address was 220 East Water Street. Moreover, the downstairs residents had access to the upstairs internet connection. The Special Agent seemed to realize that the glitch in the street number meant his warrant ran afoul of the particularity (as to place) clause of the Fourth Amendment. Section 11 contains a similar clause requiring that a warrant particularly describe the place to be searched and the person or thing to be seized. He resolved the problem by rousting the downstairs residents and coercing their consent to yielding up their computers (with user names and passwords) for forensic searching. That was on a Friday.
The forensic search of David Wright’s computer indicated child porn viewing. On the Monday after the seizure Special Agent Robertson confronted Wright and interviewed him under circumstances passing as noncustodial (for Miranda purposes). During the interview Wright admitted to searching for child porn and then to the sexual abuse of two children living in the building. The trial court suppressed the evidence from Friday’s initial seizure of the computers from the 220 address.³ The question remaining was whether the attenuation doctrine rinsed the taint from the interview/confession that followed on Monday. The trial court denied suppression. The COA reversed, holding that Section 11’s “fruit of the poisonous tree” doctrine was not limited by the federal exception of attenuation. The SCOTSI affirmed the trial court holding that the federal attenuation exception is applicable to the admission of tainted evidence under Section 11.
The CLB holds that attenuation was not established on the facts.
Conclusion
Dycus and Wright represent incremental prunings of Section 11, cutting away that promising new growth so foolishly allowed by the COA. There may be moderately better news from elsewhere. See the 2018 Appellate Case Note for the May 10, 2018 COA decision in State v. Janes under the title “Pirtle and the Traffic Stop.” In Janes the trial court suppressed evidence (drugs and a gun) recovered from a vehicle following a routine traffic stop and a consent to search without a Pirtle warning. The COA affirmed, and the SCOTSI denied transfer, signaling that Pirtle remains good law as applied to vehicles and (probably) homes.
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¹“In custody” means not free to leave as perceived by a reasonable person though not necessarily jailed or under arrest.
²There are no chemicals involved in a “chemical breath test.” The fiction to the contrary is an embarrassment which should be admitted and ended.
³Wright apparently had a Pirtle argument though Pirtle is not mentioned in the Opinion.
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