Earl D. Hammond, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Elkhart Superior Court The Honorable Charles Carter
Wicks, Judge Trial Court Cause No. 20D05-1511-CM-1792
ATTORNEY FOR APPELLANT Elizabeth A. Bellin Elkhart, Indiana.
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Jodi Kathryn Stein Deputy Attorney General
of the Case
Earl D. Hammond ("Hammond") appeals his conviction
for Class B misdemeanor possession of
marijuana. He argues that the trial court abused its
discretion by admitting into evidence the marijuana he
possessed because the evidence was obtained pursuant to a
warrantless search. He acknowledges that he consented to the
search but asserts that his consent was invalid because he
was in custody at the time and had not received a
Pirtle advisement and waived his right to an
attorney. Because we find that Hammond was not in police
custody when he consented to the search, we conclude that he
was not entitled to a Pirtle advisement or to an
attorney, and, thus, validly consented to the search.
Accordingly, the search was constitutional, and the trial
court did not abuse its discretion in admitting the
the trial court abused its discretion in admitting evidence
seized pursuant to a warrantless search.
On October 14, 2015, Officer Michael Wass ("Officer
Wass") and Detective Jeremy Stout ("Detective
Stout") with the Elkhart County Sheriff's Department
were driving in Elkhart when the car in front of them drove,
by "almost a whole-half vehicle, " over the double
yellow lines separating the lanes. (Tr. Vol. 2 at 136). The
vehicle then drove left of the center lines two more times,
prompting Officer Wass to initiate a traffic stop. The
vehicle pulled over, and Officer Wass approached the
driver's side while Detective Stout approached the
passenger's side. In addition to the driver, there were
two passengers sitting in the car, one in the front seat and
one in the back seat.
Upon reaching the car, Officer Wass saw that the driver-who
was later identified as Chevrolet Schrader
("Schrader")-had "bloodshot and glassy"
eyes, "lethargic" speech, and "lethargic"
movements. (Tr. Vol. 2 at 139). Officer Wass could also smell
an "odor of burnt marijuana coming from inside of the
vehicle." (Tr. Vol. 2 at 139). From the passenger's
side of the car, Detective Stout observed a strong odor of
alcoholic beverages and saw a box of beer in the back seat
and several beer cans lying around the car.
Officer Wass asked Schrader to step outside of the car and
administered a field sobriety test, which revealed that
Schrader was impaired. Schrader then admitted that he had
smoked marijuana a few hours previously with the two
passengers in the car, his father, Bryan Schrader
("Bryan"), and his uncle, Hammond.
Meanwhile, Detective Stout talked to Bryan and Hammond from
the passenger's side of the car. At one point, Hammond
rolled down his window to give Detective Stout his ID, and
Detective Stout was able to smell "the strong odor of
burnt marijuana coming from the vehicle." (Tr. Vol. 2 at
201). Detective Stout told Bryan that he would be conducting
a search of the vehicle for marijuana because of the odor. He
asked Bryan if he ...