State v. Linck

• Decision Date: 05 April 1999
• Docket Number: No. 34A04-9803-CR-139,34A04-9803-CR-139
• Citation: 708 N.E.2d 60
• Parties: STATE of Indiana, Appellant-Plaintiff, v. Timothy David LINCK, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 60

708 N.E.2d 60

STATE of Indiana, Appellant-Plaintiff, v. Timothy David LINCK, Appellee-Defendant.

No. 34A04-9803-CR-139.

Court of Appeals of Indiana.

April 5, 1999.

Jeffrey A. Modisett, Attorney General, James A. Garrard, Deputy Attorney General, Indianapolis, for appellant.

Mark A. Ryan, Kokomo, for appellee.

OPINION

SULLIVAN, Judge

Appellant, the State of Indiana, appeals the trial court's grant of defendant, Timothy David Linck's (Linck) motion to suppress.

On April 30, 1997, Officers Hudson and Foster of the Kokomo Police Department were dispatched to Linck's apartment to investigate a complaint of illegal drug use. As the officers entered Linck's apartment building and ascended the stairs, they smelled what they believed to be marijuana burning. Officer Hudson then knocked on Linck's apartment door. After a few seconds, Linck answered the door and allowed the officers to enter. While inside Linck's apartment, Officers Hudson and Foster noticed that the odor of marijuana was stronger.

Officer Hudson then informed Linck that they had received a complaint of illegal drug use. Officer Hudson also informed Linck that he smelled the odor of burning marijuana and believed that Linck had been engaging in illegal drug activity. Officer Hudson then asked Linck "what the problem was" in reference to the illegal drug activity or odor. Record at 69. In response, Linck stated that he had "just smoked a joint." Record at 70. Based upon Linck's response, Officer Hudson then asked him if "there was anything left or if there was any more." Record at 70. Linck answered yes and immediately thereafter retrieved from the refrigerator a bag which contained 28.2 grams of marijuana. After Officer Hudson took possession of the marijuana, he asked Linck "if that was all," to which Linck responded that there was some in the bedroom. Record at 71. Officer Foster followed Linck into the bedroom and seized another bag containing 3.2 grams of marijuana. Linck was then placed under arrest.

On May 1, 1997, Linck was charged with Possession of Marijuana, ¹ a Class D felony. On September 4, 1997, Linck filed a motion to suppress the marijuana and the statements he made immediately prior to his arrest. Specifically, Linck argued that because the officers had failed to advise him of his Miranda rights prior to conducting custodial interrogation, his statements and the marijuana were unlawfully obtained.

A hearing was held on the motion to suppress on December 22, 1997. After taking the matter under advisement, the trial court granted Linck's motion, suppressing all of Linck's statements and the two bags of marijuana. As a result, the charge against Linck was dismissed. The State now appeals the trial court's order pursuant to I.C. 35-38-4-2(5) (Burns Code Ed. Repl.1998), which permits an appeal by the State if the ultimate effect of the order precludes the State from further prosecution.

During the suppression hearing, the State was required to demonstrate that the measures it used to secure the statements and marijuana were constitutional. Thus, the State is appealing from a negative judgment, which this court will reverse only if the evidence is without conflict and all reasonable inferences lead to an opposite conclusion. State v. Farber (1997) Ind.App., 677 N.E.2d 1111, 1113-14, trans. denied. This court neither reweighs the evidence nor judges the credibility of witnesses and views the evidence in the light most favorable to the trial court's conclusion. Id. at 1114.

Miranda warnings are based upon the Fifth Amendment Self-Incrimination Clause, and were designed to protect an individual from being compelled to testify against himself. Curry v. State (1994) Ind.App., 643 N.E.2d 963, 976, trans. denied. However, the procedural safeguards of Miranda apply only when an individual is subjected to custodial interrogation. Id. Therefore, police officers are not required to give a defendant Miranda warnings unless the defendant is both in custody and subject to interrogation.

Interrogation includes both express questioning and words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Id. at 977. However, interrogation must involve a measure of compulsion beyond that inherent in custody itself. Id. In order to be in custody for purposes of Miranda, one need not be placed under formal arrest. Thompson v. State (1998) Ind.App., 692 N.E.2d 474, 476. Rather, the determination is based upon whether the individual's freedom has been deprived in a significant way or if a reasonable person in the accused's circumstances would believe that he is not free to leave. Id; Cliver v. State (1996) Ind., 666 N.E.2d 59, 66, reh'g denied. The determination involves an examination of all the objective circumstances surrounding the interrogation. Loving v. State (1995) Ind., 647 N.E.2d 1123, 1125.

In its order granting the motion to suppress, the trial court concluded that all of the questions asked by the officers, including Officer Hudson's initial question of "what the problem was," amounted to interrogation because they were made with the intention of eliciting an incriminating statement. The court further concluded that Linck was "in custody" for purposes of Miranda after he admitted that he smoked the joint.

Without reweighing the evidence or the credibility of the witnesses, and viewing the evidence in the light most favorable to the trial court's ruling, we find that the trial court properly concluded that the officer's questions amounted to interrogation. At the suppression hearing, Officer Hudson testified that, before he asked Linck the first question of "what the problem was," he had already advised Linck that he had received a complaint of illegal drug activity, that he believed that the illegal activity had been occurring and that he had smelled burning marijuana. Officer Hudson further testified that he asked this question specifically "in reference to the illegal drug activity or odor." Record at 69-70. Under these circumstances, Officer Hudson should have known that his question was reasonably likely to elicit an incriminating response. Therefore, the question amounted to interrogation.

We similarly conclude that the remaining two questions, regarding the possible existence of additional amounts of marijuana, also constituted interrogation. When Officer Hudson asked Linck if "there was anything left or if there was any more," Linck had just admitted smoking a joint. Further, immediately before Officer Hudson asked Linck "if that was all," Linck had just retrieved the first bag of marijuana, containing 28.2 grams of marijuana from the refrigerator. Record at 70, 71. These questions clearly were likely to elicit an incriminating response in regard to the presence and location of marijuana. In fact, because the officers obtained the second bag of marijuana, the prosecutor was able to elevate Linck's charge from a Class A misdemeanor to a Class D felony. Therefore, we cannot say that the trial court erred by concluding that Officer Hudson's questions amounted to interrogation.

We now turn to whether Linck was in custody for purposes of requiring Miranda warnings. The record reveals that Linck was not formally arrested until after the second bag of marijuana had been seized. The State contends that it was only at that point in time that Linck was in custody for purposes of Miranda. However, Linck contends, as the trial court concluded, that he was in custody after he admitted smoking the joint because a reasonable person would not have felt free to leave following that admission. We agree.

By informing the officers that he had just smoked the marijuana, Linck admitted to engaging in illegal activity, confirming the officers' suspicions and the original complaint. Further, immediately before Linck made this admission, the officers had smelled burning marijuana both in the hallway and in Linck's apartment. At no time did the officers inform Linck that he was free to leave. As a result, we agree with the trial court that a reasonable person would not have felt free to leave. Thus, Linck was in custody for purposes of Miranda after he admitted smoking the marijuana. At that point, the officers were required, but failed, to advise Linck of his Miranda warnings before they questioned him further. Therefore, any statements made by Linck after he admitted smoking the marijuana, should have been suppressed. ²

Nevertheless, the State argues that, although Miranda requires exclusion of Linck's statements in regard to the location of the bags of marijuana, it does not similarly require exclusion of the physical evidence itself as fruit of the poisonous tree. According to the State, the "fruits" doctrine applies only to evidence which is seized following an actual constitutional violation and not a mere violation of Miranda's prophylactic procedures. Consequently, the State contends that, because Linck's confession was not the product of inherently coercive police tactics or methods offensive to due process, there can be no Fifth Amendment violation and, consequently, no tainted physical evidence.

In support of its contention, the State relies upon several United States appellate court decisions which have concluded that physical evidence derived from a statement obtained in violation of Miranda is admissible absent evidence of coercion or other misconduct on the part of law enforcement officers sufficiently egregious to offend due process. See, e.g., United States v. Mendez (1994) 5th Cir., 27 F.3d 126, 130 (mere violation of Miranda absent constitutional violation does not trigger the "fruits" doctrine and, therefore, derivative evidence is admissible); United States v. Crowder (1995) 6th Cir., 62 F.3d 782, 786 (nontestimonial physical evidence discovered from unwarned statement is admissible if unwarned statement was not product of coercion...