Pirtle v. State, 174S9

CourtSupreme Court of Indiana
Citation263 Ind. 16,323 N.E.2d 634
Docket NumberNo. 174S9,174S9
PartiesRobert E. PIRTLE, Appellant, v. STATE of Indiana, Appellee.
Decision Date25 February 1975

Page 634

323 N.E.2d 634
263 Ind. 16
Robert E. PIRTLE, Appellant,
STATE of Indiana, Appellee.
No. 174S9.
Supreme Court of Indiana.
Feb. 25, 1975.

Page 636

[263 Ind. 21] Donald D. Chiappetta, Muncie, for appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Robert E. Pirtle, was convicted in a trial by jury of First Degree Murder, I.C.1971, 35--13--4--1, being Burns § 10--3401 (1974 Supp.). On appeal, he presents three issues: (1) the admission of evidence found in the search of his apartment and of testimony concerning that evidence; (2) the admission of evidence found in the search of the car he was driving and of testimony concerning that evidence; and (3) the admission of allegedly irrelevant evidence.

Appellant was arrested in the early morning of December 24, 1972, for possession of a stolen car. An officer entered the car to look for the owner's registration and saw the handle of a gun. Another officer removed the gun from the car. At the police station, appellant was questioned. In the afternoon, he signed a waiver allowing a search of his apartment. During the search, officers found the wallet of the victim of a December 16, 1972, homicide and met two men who confessed their part in the homicide and implicated appellant. Appellant was charged with First Degree Murder.

The court had a hearing on appellant's motion to suppress the evidence found in the two searches. The motion was denied. At the trial itself, appellant properly objected to the introduction of this evidence.


At the hearing on the motion to suppress, Officer White testified that he arrested

Page 637

appellant at a filling station at 2:48 [263 Ind. 22] a.m., December 24, 1972. He read appellant his constitutional rights as required by Miranda after appellant was seated in the squad car. Appellant made no waiver in response thereto. When appellant arrived at the police station, another officer read these rights to him between 3:00 and 4:00 a.m. Again, no waiver was given. Detective Hovis, who was in charge of the investigation at that time, heard these rights read. Hovis testified:

'A. I asked him if he wanted to talk to us about this and he said he would like to talk to his attorney, talk to an attorney first.

A. I said, 'You can call an attorney, there's a phone on the desk.'

Q. Now, after he asked for an attorney, did you continue to talk with this man?

A. We sat there and talked for quite a while.'

Hovis testified that nothing which appellant said led to any information on the murder case. He could not remember whether he had told any other police officer that appellant wanted an attorney.

Officer Stonebreaker talked to appellant about 3:00 p.m., December 24th. He testified that, due to prior investigation on that day, appellant had been mentioned as a possible suspect in the homicide-robbery of Clifford Levi, largely because appellant was so willing to talk about the stolen car and potential armed robbery. Appellant was advised of his rights again, and again no waiver was given. Stonebreaker did not know appellant had requested an attorney, and he testifed that he would not have questioned appellant if appellant had asked him for an attorney. His response is precisely correct. Detective Cox also questioned appellant, but testified that he would not have done so had he known appellant had asked for an attorney. Cox learned appellant's address. He asked appellant if he would authorize a search of the premises, and appellant agreed and signed a search waiver. The officers searched his [263 Ind. 23] apartment and found evidence which incriminated him in the Levi murder.

Appellant testified that he had lived in Muncie only six weeks and knew no attorneys. He said that he had requested an attorney only one time, because he thought his second and third request would get the same response. He testified that he had not wanted an attorney by the time he signed the search waiver.

Appellant has raised as a first error the failure of the court to suppress real evidence and testimony which was discovered during the search based on appellant's consent. He argues that the consent was not validly given, since he was denied his right to counsel before questioning. Prior to Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, courts would determine whether a defendant voluntarily consented to the surrender of one of his constitutional rights by assessing the circumstances in each case. In Miranda, the court determined that the atmosphere of in-custody interrogation, was inherently coercive. Knowledge of his rights and the presence of counsel would help defendant make a voluntary decision whether or not to make a statement to the police.

The Muncie Police Department read appellant an unequivocal statement of his rights. In relevant part, it was:

'You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer one will be appointed for you before any questioning, if you wish.'

Since Miranda, the procedure, once warnings have been given, is clear.

'If the individual states that he wants an attorney, the interrogation must cease

Page 638

until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.' 384 U.S. at 474, 86 S.Ct. at 1628.

[263 Ind. 24] In this case, Officer Hovis testified, 'I asked if he wanted to talk to us about this and he said he would like to talk to his attorney, talk to an attorney first.' The officer's reply, 'You can call an attorney,' was curt, but perhaps reasonable. However, when appellant did not use the phone, the officer had a duty to ascertain what appellant meant by his request. United States v. Nielsen, 392 F.2d 849 (7th Cir. 1968). A person must know that the recitation of his rights is not merely a ritualistic formula. Compare Mims v. State (1970), 255 Ind. 37, 262 N.E.2d 638. Not only should Hovis himself have discontinued questioning, but also he should have informed the other officers of appellant's request.

'If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.' 384 U.S. at 475, 86 S.Ct. at 1628.

Neither the officers nor this Court can assume that appellant silently waived his right to counsel by his failure to use the phone.

'The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer.' 384 U.S. at 475, 86 S.Ct. at 1628, quoting Carnley v. Cochran (1962), 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70.

Waiver is a prerequisite to the admission of any statement by defendant. In this case, the officers testified that nothing that appellant said led to any information implicating him in the Levi homicide. However, the officers testified that they became suspicious largely because he was so willing to talk. The defense asked Officer Cox:

'Now, Officer, if you had known Mr. Pirtle requested the presence of an attorney, would you have asked him to sign that waiver?'

[263 Ind. 25] Cox replied:

'It would have been impossible for me to have asked him about that, due to the fact that if I had known this I would not have been interviewing Mr. Pirtle.'

Therefore, it is clear that the consent to search was signed when an officer was questioning appellant at a time when no questioning should have been in progress. The consent was a product of a violation of appellant's Miranda rights. It therefore cannot serve to legitimate the warrantless search of appellant's apartment, and the trial court erred in not excluding the fruits of that search.

We have found one case in which the factual context was very similar. In United States v. Fisher, 329 F.Supp. 630 (D.Minn.1971), the defendant was in jail and had been informed of his Miranda rights, which he then waived. At a point during questioning, he requested an attorney before he answered any more questions. Interrogation ceased but he was told that he could not be given an attorney at that time. Later he was asked if he would sign a consent to search, and he agreed.

That court noted that the consent might not have been voluntary in all the circumstances, but that its decision was based on the fact that the search violated the defendant's Miranda rights. When a defendant requests legal advice, the police 'should not continue interrogation nor seek further to procure consensual admissions from him, whether in the form of confessions, consents to search, waiver of privilege or otherwise.' 329 F.Supp. at

Page 639

634. The court noted that the defendant had not been informed of his Fourth Amendment rights, although the waiver form implied that he had been so informed.

'Certainly this is a vital or critical step in his case, and having asked for counsel he was entitled to advice of counsel as to the consequences of what he was doing and as to what would be required to obtain a search warrant.' 329 F.Supp. at 634.

[263 Ind. 26] The Sixth Amendment of the Constitution of the United States and Art. I, § 13, of the Indiana Constitution guarantee a defendant the assistance of counsel for his defense. The right to counsel applies 'at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial.' United States v. Wade (1967), 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149. An accused is entitled to consult with counsel while in police custody. Winn v. State (1953), 232 Ind. 70, 111 N.E.2d 653; Dearing v. State (1950), 229 Ind....

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