Argued: April 24, 2018
from the Marion Superior Court, No. 49G12-1601-CM-1053 The
Honorable David J. Certo, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
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.
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.
and Procedural History
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
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.
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.
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
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.
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