Dycus v. State

• Decision Date: 03 October 2018
• Docket Number: Supreme Court Case No. 18S-CR-488
• Citation: 108 N.E.3d 301
• Parties: Monica DYCUS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

108 N.E.3d 301

Monica DYCUS, Appellant (Defendant below),

v.STATE of Indiana, Appellee (Plaintiff below).

Supreme Court Case No. 18S-CR-488

Supreme Court of Indiana.

Argued: April 24, 2018

FILED October 3, 2018

ATTORNEYS FOR APPELLANT: Rory Gallagher, Ruth Johnson, Marion County Public Defender, Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, George P. Sherman, Andrew Kobe, Deputy Attorneys General, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-1705-CR-978

David, Justice.

Indiana's Constitution affords its citizens certain rights, including the right to counsel through all stages of a prosecution. That right entitles an accused to consult with counsel while in police custody. In Pirtle v. State , our Court relied on our State Constitution to require an advisement of rights prior to police obtaining consent to a search from a person in custody. So far, that requirement has been understood to apply only to searches of homes and vehicles. Field sobriety tests, chemical breath tests, blood draws, and cheek swabs have all been found to be searches not requiring an additional advisement of rights prior to consent. Here, we address whether our Pirtle requirement extends to Drug Recognition Exams ("DRE"); in other words, whether an advisement is necessary before police can obtain a person's valid consent to a DRE. We find that no advisement is required. A DRE is not the type of search that calls for a Pirtle advisement.

Facts and Procedural History

On January 8, 2016, Indianapolis Metropolitan Police Department ("IMPD") officers responded to a 911 call about a dispute on the road. Monica Dycus had allegedly been following her ex-boyfriend, El-hadj Barry, who was picking up a female friend at her school. Barry's friend called 911 because Dycus was tailgating Barry's vehicle, swerving between lanes, and pulling up next to them at stoplights to shout obscenities.

When IMPD Officer Christopher Cooper ("Officer Cooper") arrived on the scene, he saw the two vehicles stopped at a red light. Dycus had one foot out of her vehicle and was observed yelling at the car in front of her. Officer Cooper approached Dycus and asked for identification. He also spoke with Barry to find out what had happened.

After checking Barry and Dycus's identification, Officer Cooper told Barry that he could leave. Officer Cooper continued to detain Dycus because he suspected that she was driving with a suspended license. While speaking with Dycus, Officer Cooper noticed an odor of marijuana coming from Dycus's breath. Officer Cooper called for back up from Officer Christopher Winter ("Officer Winter"), an IMPD officer who was certified to conduct DREs. Officer Cooper continued to question Dycus as they waited for Officer Winter's arrival. In the course of that questioning, Dycus admitted to Officer Cooper that she had smoked marijuana with her mother "about an hour" prior to the encounter.

When Officer Winter arrived, Dycus was asked to submit to various field sobriety tests. She passed the horizontal gaze nystagmus test, which indicated that she was not under the influence of alcohol. However, Dycus failed the walk-and-turn and the one-legged stand tests. Based on the field sobriety test results, Officer Winter believed that Dycus was intoxicated. He offered to administer a certified breath test, which would test for the presence of alcohol. Dycus consented.

Officers transported Dycus to an IMPD office located approximately four miles from the initial stop to conduct the test. The results came back negative for the presence of alcohol in Dycus's system. However, while conducting the test, Officer Winter noticed a green, leafy substance in Dycus's mouth and "a green streak going down her tongue." (Tr. Vol. 2, p. 130). These signs were indicative of marijuana consumption.

Officer Winter then offered Dycus a DRE. He explained that he wanted her to submit to a DRE because her signs of impairment were not consistent with negative alcohol results. Dycus again consented. The exam took approximately thirty minutes to complete and involved a variety of measurements and observations that were assessed in a seven-category evaluation matrix, known as a "drug symptom matrix." After entering all observations and results of Dycus's DRE into the "drug symptom matrix," Officer Winter determined that Dycus was under the influence of marijuana.

Dycus consented to a blood draw, to be administered at Eskenazi Hospital. At the hospital, two vials of blood were obtained from Dycus, which were eventually sent for testing to National Medical Services, an accredited laboratory located in Pennsylvania. The lab results revealed that Dycus's blood tested positive for Delta-9 THC, an active metabolite of marijuana with psychoactive effects.

The State charged Dycus with Count I, Class A misdemeanor Operating a Vehicle While Intoxicated. Later, the State added Count II, Class C misdemeanor Operating a Vehicle with a Schedule I or II Controlled Substance or its Metabolite in the Body. At trial, Dycus objected to the admission of evidence regarding the DRE, arguing that she should have been given a Pirtle advisement before being asked if she consented to the exam. Dycus also argued that the admission of the chain of custody forms and shipping documents for her blood samples violated her constitutional right to confrontation. The trial court rejected both objections and Dycus was found guilty as charged. At sentencing, the trial court vacated Count II. Dycus was then sentenced to 365 days for the remaining count, with 361 days suspended to probation.

Dycus appealed, making the same arguments she made at trial: (1) that the officer's testimony regarding the DRE was inadmissible because she should have been given a Pirtle advisement prior to being asked to consent to the exam, and (2) that the admission of chain custody forms for toxicology documents violated her right to confrontation under the United States Constitution. The Court of Appeals found that there was no confrontation clause violation, but reversed Dycus's conviction because a Pirtle advisement had not been given prior to the DRE consent. Dycus v. State , 90 N.E.3d 1215, 1220-26 (Ind. Ct. App. 2017).

The State sought transfer, which we now grant, thereby vacating the Court of Appeals' opinion. Ind. App. Rule 58(A).

Standard of Review

A trial court has broad discretion in ruling on admissibility of evidence. Turner v. State , 953 N.E.2d 1039, 1045 (Ind. 2011). We will ordinarily disturb a trial court's admissibility rulings only where it has abused its discretion. Id. A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court or if it misapplies the law.

Heaton v. State , 984 N.E.2d 614, 616 (Ind. 2013). However, where, as here, a constitutional violation is alleged, the proper standard of appellate review is de novo. Speers v. State , 999 N.E.2d 850, 852 (Ind. 2013), cert. denied , ––– U.S. ––––, 134 S.Ct. 2299, 189 L.Ed.2d 183 (2014).

Discussion and Decision

Today, we are asked to decide whether, prior to obtaining consent to a DRE, police must advise a person in custody of her right to consult with counsel—a question that is grounded in protections offered by our State Constitution.

The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects" from unreasonable searches and seizures. U.S. Const. amend. IV. It requires police to obtain a search warrant from a neutral, detached magistrate prior to undertaking a search of either a person or private property. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, that requirement is subject to "certain carefully drawn and well-delineated exceptions." Id. One such exception occurs when a person consents to a search; in other words, a person's valid consent eliminates the need for a search warrant. Our State Constitution offers citizens parallel protections against unreasonable searches and seizures. For instance, Article 1, Section 11 provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated ...."

Although the wording of Section 11 is almost identical to that of the Fourth Amendment, our State Constitution's search and seizure clause is given an independent interpretation and application. Myers v. State , 839 N.E.2d 1146, 1153 (Ind. 2005). In fact, Indiana's Constitution sometimes offers broader protections than those offered by the U.S. Constitution. Conley v. State , 972 N.E.2d 864, 879 (Ind. 2012). Amongst those broader protections offered by our State Constitution is the requirement that, prior to obtaining consent to a search, police must explicitly advise a person in custody of her right to consult with counsel. It is unique to Indiana and has no federal counterpart. See United States v. LaGrone , 43 F.3d 332, 337 (7th Cir. 1994) ("A person in custody has no federal constitutional right to consult with an attorney before consenting to a search of his property. However, the Indiana [C]onstitution does afford such a right.").

Whether our advisement requirement extends to a DRE—in other words, whether police are required to advise a person in custody of her right to consult with counsel before obtaining consent to perform the exam—is at issue in this case. The State asks us to affirm the trial court's determination that police need not specifically advise a person in custody of her right to consult with counsel before obtaining consent to a DRE. Dycus, on the other hand, argues that the Court of Appeals correctly held that without such advisement, evidence obtained through a DRE is inadmissible. We agree with the State and find that a Pirtle warning, as such advisement has come to be known,...