Ackerman v. State, No. 29A02-0111-CR-745.

• Docket Nº: No. 29A02-0111-CR-745.
• Citation: 774 N.E.2d 970
• Case Date: September 12, 2002
• Court: Court of Appeals of Indiana

774 N.E.2d 970

Leslie ACKERMAN, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 29A02-0111-CR-745.

Court of Appeals of Indiana.

September 12, 2002.

774 N.E.2d 972

J.J. Paul, III, John D. Fierek, Voyles, Zahn, Paul, Hogan & Merriman Indianapolis, IN, Attorneys for Appellant

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

774 N.E.2d 971

OPINION

BROOK, Chief Judge.

Case Summary¹

774 N.E.2d 973

Appellant-defendant Leslie Ackerman ("Ackerman") appeals her conviction for operating a vehicle while intoxicated ("OWI")² as a Class A misdemeanor. We affirm

Issues

Ackerman raises four issues, which we consolidate, restate, and reorder as the following three:

I. whether the trial court abused its discretion in admitting evidence police collected at her home and at the collision scene;

II. whether the trial court properly admitted evidence that the instrument used to test Ackerman's breath alcohol content ("BAC") was functioning properly and whether the trial court properly excluded the testimony of certain defense witnesses regarding the trustworthiness of Ackerman's BAC test result; and

III. whether the State satisfied the corpus delicti rule.

Facts and Procedural History

At 11:43 p.m. on June 27, 2000, Officer Jason Greer ("Officer Greer") of the Carmel Police Department responded to a report of an accident at 126th Street and River Road in Hamilton County, Indiana. Officer Greer arrived at the scene approximately one minute later and observed a white Corvette that had left the roadway and collided with a tree. The car was damaged and both airbags had deployed, but there was no driver at the scene. Officer Greer checked the license plate and determined that it was registered to a BMW owned by Ackerman, who lived nearby. Officer Greer drove to Ackerman's home with Officer Scott Pilkington ("Officer Pilkington"). Officer Greer knocked on Ackerman's door, and she opened it. Ackerman was crying and talking on the telephone. Although Officer Greer did not verbally ask to enter Ackerman's house, Ackerman stepped aside, allowing Officer Greer to enter. Ackerman admitted to being the driver of the Corvette. At some point after Ackerman finished her telephone conversation, Officer Greer noticed the smell of alcohol on Ackerman. By that time, Officer Greer had also noticed that Ackerman had slow and slurred speech. Officer Greer asked Ackerman to accompany him to the scene of the collision to complete an accident report.

As they were returning in his car to the scene of the collision, Officer Greer questioned Ackerman about her activities that evening. She admitted that she had had two chocolate martinis over the course of the evening at a bar in Indianapolis; that a passing motorist had taken her home from the scene of the collision; and that she had been home approximately five minutes when Officer Greer arrived.

When they arrived at the scene of the collision, Officer Greer read Ackerman her Miranda rights. After Ackerman waived her Miranda rights, Officer Greer asked her again about her activities that evening. Ackerman's answers confirmed what Officer Greer had learned at her home and in his car. Officer Greer then administered the horizontal gaze nystagmus, walk-and-turn, and one-legged-stand field sobriety tests ("FSTs"), all of which Officer Greer videotaped and all of which Ackerman failed. Officer Greer then administered a portable breath test ("PBT") to Ackerman.

Two other police officers observed Ackerman at the collision scene. Officer Michael Mabie ("Officer Mabie") noticed that

774 N.E.2d 974

Ackerman smelled of alcohol, had red eyes and dilated pupils, and seemed unsteady on her feet. Officer Jeff Horner ("Officer Horner") also smelled alcohol on Ackerman.³ After Ackerman failed the FSTs, Officer Greer read Ackerman the Indiana Implied Consent form,⁴ and she agreed to submit to a breath test for BAC. Officer Greer handcuffed Ackerman and drove her to the Carmel Police Department, where Officer Horner tested her BAC on the BAC DataMaster ("DataMaster"). After the test indicated that Ackerman's BAC was 0.15 grams of alcohol per 210 liters of breath, Officer Greer arrested her

On June 28, 2000, the State charged Ackerman with OWI and with operating a vehicle with an unlawful BAC,⁵ a Class C misdemeanor. On April 27, 2001, Ackerman filed a motion in limine and a motion to suppress all evidence collected by the police after Officer Greer entered her home. On June 8 and 11, 2001, the trial court held a hearing on Ackerman's motions, which the trial court denied except as to evidence regarding the PBT.

On June 26, 2001, a jury found Ackerman guilty as charged. The trial court entered judgment on the OWI charge only, noting that the unlawful BAC charge was a lesser-included offense of OWI. Ackerman now appeals.

Discussion and Decision

I. Admission of Evidence⁶

Ackerman claims that Carmel police violated various of her constitutional rights during their investigation on June 27 and 28, 2000, and that the trial court therefore erred in denying portions of her motion to suppress and overruling various objections at trial.

The admissibility of evidence is within the sound discretion of the trial court. We will not disturb its decision absent a showing that the trial court abused its discretion. Upon review of a trial court's ruling on a motion to suppress evidence, we will examine the evidence most favorable to the ruling, together with any uncontradicted evidence.

Johnson v. State, 710 N.E.2d 925, 927 (Ind. Ct.App.1999) (citations omitted). Our standard of review of rulings on the admissibility of evidence is the same whether the challenge is made by a pre-trial motion to suppress or by a trial objection. See Gibson v. State, 733 N.E.2d 945, 951 (Ind.Ct. App.2000) ("When ruling on the admissibility of evidence, the trial court is afforded

774 N.E.2d 975

broad discretion, and Indiana appellate courts will only reverse the ruling upon a showing of abuse of discretion.... [W]e consider the evidence most favorable to the trial court's ruling and any uncontradicted evidence to the contrary to determine whether there is sufficient evidence to support the ruling.") (citations omitted).

Ackerman claims that Officer Greer violated her Fourth Amendment⁷ right against unreasonable searches when he entered her home; that Officer Greer violated her Fifth Amendment⁸ right against self-incrimination when he questioned her at her home and in his car; and that Officer Greer again violated her Fourth Amendment right against unreasonable searches when he failed to advise her that she may consult with an attorney before he administered the FSTs. We address each claim in turn.

A. Officer Greer's Entry into Ackerman's Home

Ackerman contends that Officer Greer's entry into her home was unlawful and that the trial court abused its discretion in denying her motion to suppress all evidence gathered after Officer Greer entered her home. Specifically, Ackerman claims that Officer Greer's warrantless entry into her home was an unreasonable search in violation of her Fourth Amendment rights and that all evidence collected subsequent to the violation should have been excluded.

"To generally deter police from violating people's Fourth Amendment rights, the Supreme Court created the exclusionary rule, which prohibits the admission of evidence seized in violation of the Fourth Amendment." Caudle v. State, 754 N.E.2d 33, 34 (Ind.Ct.App.2001), trans. denied.

The Fourth Amendment protects persons from unreasonable search and seizure and this protection has been extended to the states through the Fourteenth Amendment. Warrantless searches and seizures inside the home are presumptively unreasonable. When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search. One well-recognized exception to the warrant requirement is a voluntary and knowing consent to search.

Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001) (citations omitted). "When the State seeks to rely upon consent to justify a warrantless search, it has the burden of proving that the consent was, in fact, freely and voluntarily given." Lyons v. State, 735 N.E.2d 1179, 1185 (Ind.Ct.App.2000), trans. denied (2002). "The voluntariness of this consent to search is a question of fact to be determined from the totality of the circumstances." Id. "[A]n express consent is not a requirement for a valid consent search. The circumstances surrounding the search may demonstrate that the party involved implicitly gave consent, by word or deed." State v. Jorgensen, 526 N.E.2d 1004, 1006 (Ind.Ct.App.1988). "A consent to search is valid except where it is procured by fraud, duress, fear, intimidation, or where it is merely a submission to the supremacy of the law." Lyons, 735 N.E.2d at 1185.

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We note many similarities between the circumstances of Officer Greer's entry in the instant case and the circumstances of the police officers' entry in Jones v. State, 409 N.E.2d 1254 (Ind.Ct.App.1980). Acting on an anonymous tip indicating the presence of heroin inside a motel room, two police officers approached the door of the room without a search warrant. See id. at 1256. After knocking once, the officers observed the drapes parting as a woman inside the room peered out a window at them. See id. Soon thereafter, additional officers posted behind the motel saw a person later identified as Jones throw a foil package containing heroin out a window. See id. After the officers knocked a second time, Jones opened the door. See id. When the officers identified themselves, Jones "stepped back and indicated for the officers to enter." Id.

The Jones court concluded that, under the circumstances, Jones had consented to the entry. Id. Citing to Robbins v. MacKenzie, 364 F.2d 45 (1st...