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Dycus v. State

Supreme Court of Indiana

October 3, 2018

Monica Dycus Appellant (Defendant below),
State of Indiana Appellee (Plaintiff below).

          Argued: April 24, 2018

          Appeal from the Marion Superior Court, No. 49G12-1601-CM-1053 The Honorable David J. Certo, Judge

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

          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.


          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 ...

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