– Police were dispatched to Δ’s apartment on a complaint of illegal drug use. Police smelled marijuana. Police knocked on the door and Δ allowed police to enter. The officers noticed that the smell of marijuana became stronger. The officers told Δ that they had received a complaint of illegal drug use. The officers told Δ that they smelled marijuana and believed that Δ was engaging in illegal drug activity. Δ stated that he had just smoked a joint. The officer asked Δ if there was more marijuana and Δ stated that there was and gave the marijuana to the officers. Δ argued that the marijuana and his statements should be suppressed as the information was gained by a custodial interrogation and Δ was not read his Miranda rights. “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. 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. 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. The determination involves an examination of all the objective circumstances surrounding the interrogation. Linck at 62. “By informing the officers that he had just smoked the marijuana, Δ admitted to engaging in illegal activity . . . At no time did the officers inform Linck that he was free to leave. . . a reasonable person would not have felt free to leave. Thus, Δ was in custody for purposes of Miranda after he admitted smoking the marijuana.” State v. Linck, 708 N.E.2d 60 (Ind. Ct. App 1999).

– “A reasonable person when faced with a police officer pulling up to him in a marked vehicle and calling for him to come over to the car would not assume that he can just turn and walk away.” Dowdell v. State 747 N.E.2d 564 (Ind. Ct. App. 2001)

– Δ was at a gas station near the phone. A female approached Δ. Officers then approached, asked what Δ and the female were doing, and requested ID. Δ gave the police his ID. One officer went to the car to run Δ’s information. Another officer asked Δ if he had any weapons. Δ admitted that he had a knife and began to reach for his pocket. The officer told Δ not to reach for the knife, unlatched his gun, and ordered Δ to turn around and put his hands behind his head. At first Δ refused. The second time the officer made the request, Δ complied, and cocaine fell from Δ’s hands.  Δ argued that the Officer did not have reasonable suspicion to detain and question him and had therefore violated his rights under the 4th Amendment.  “In order to determine whether the officer impinged upon Calmes’s Fourth Amendment rights, we must first analyze what level of police investigation occurred. There are three levels of police investigation, two of which implicate the Fourth Amendment and one of which does not. First, the Fourth Amendment requires that an arrest or detention that lasts for more than a short period of time must be justified by probable cause. Second, pursuant to Fourth Amendment jurisprudence, the police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based upon specific and articulable facts, the officer has a reasonable suspicion that criminal activity has or is about to occur. The third level of investigation occurs when a police officer makes a casual and brief inquiry of a citizen, which involves neither an arrest nor a stop. This is a consensual encounter in which the Fourth Amendment is not implicated.” “As long as an individual remains free to leave, the encounter is consensual and there has been no violation of the individual’s Fourth Amendment rights. Factors to be considered in determining whether a reasonable person would believe he was not free to leave include: (1) the threatening presence of several officers, (2) the display of a weapon by an officer, (3) the physical touching of the person, or (4) the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” “Detention turns on an evaluation, under all the circumstances, of whether a reasonable person would feel free to disregard the police and go about his or her business.”  “[U]pon being asked if he was armed, a reasonable person in Calmes’s position would not feel free simply to terminate the encounter, leave his license with the police, and walk away.” – State v. Calmes, 894 N.E.2d 199 (Ind. App. 2008).  

– Police approached Δ, who was sitting in his car in an airport parking lot to warn Δ about a large parking charge. The officer noticed that Δ was holding a circular object to his nose. Δ quickly moved the object to his side. The officer asked for Δ’s ID. While still holding the ID, the officer asked Thompson for the object. Δ gave a vial to the officer. The officer asked if the substance could be cocaine. Δ replied that it could be cocaine. “Fourth Amendment safeguards come into play where there is a show of official authority such that a reasonable person would have believed he was not free to leave. Applying this test, we conclude that when Kier requested the vial a reasonable person in Thompson’s position would have believed that he was not free to leave. . . when Kier made the request he had not returned Thompson’s driver’s license. Indeed, it is fair to infer that Kier kept Thompson’s license throughout the incident. When Kier retained Thompson’s license, the encounter matured into an investigative stop protected by the Fourth Amendment. Without his driver’s license Thompson was effectively immobilized. A reasonable person in these circumstances would not have believed himself free to leave. If Thompson had tried to drive away he could have been arrested for driving without a license.” Thompson at 1359.  The motion to suppress is granted. – US v. Thompson, 712 F.2d 1356 (11th Cir. 1983).


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