Danielle Kelly v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the Jan 18 2013, 8:29 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the CLERK
law of the case. of the supreme court,
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ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES W. MCNEW GREGORY F. ZOELLER
JON A. KEYES Attorney General of Indiana
Allen Wellman McNew
Greenfield, Indiana J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DANIELLE KELLY, )
)
Appellant-Defendant, )
)
vs. ) No. 30A01-1112-CR-584
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HANCOCK CIRCUIT COURT
The Honorable Richard D. Culver, Judge
Cause No. 30C01-1009-FA-209
January 18, 2013
MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION
ROBB, Chief Judge
Danielle Kelly petitions for rehearing of this court’s opinion dated August 30,
2012, in which we addressed three issues on interlocutory appeal from the trial court’s
denial of Kelly’s motion to suppress: 1) whether a vehicle search violated the federal
constitution; 2) whether the search violated the state constitution; and 3) whether
incriminating statements she made to police at the scene should be suppressed; we held
the trial court did not err in any respect. Kelly v. State, 973 N.E.2d 110 (Ind. Ct. App.,
Aug. 30, 2012) (table). On rehearing, Kelly does not challenge our conclusions as to the
vehicle search, but contends we failed to consider a “dispositive fact” in our discussion
of the incriminating statements. Because this is an interlocutory appeal of a motion to
suppress and the issue is likely to arise again at trial, we grant rehearing to address
Kelly’s claim but reaffirm our opinion in all respects.
We briefly recount the facts relevant to this issue: after Kelly’s vehicle, in which
she was a passenger, was stopped by police due to a tip that the driver was carrying
drugs, officers questioned Kelly for several minutes without first giving her Miranda
warnings. During this initial questioning, Kelly admitted she knew there were drugs in
the car. After she was advised of her Miranda rights, she repeated this admission. The
State charged Kelly with dealing in cocaine and possession of cocaine within 1,000 feet
of a public park or youth program center, both Class A felonies. Kelly filed a motion to
suppress, among other things, her incriminating statements, which the trial court denied.
On appeal, Kelly claimed her post-Miranda statements should be suppressed
pursuant to Missouri v. Seibert, 542 U.S. 600 (2004). We held that because the pre-
Miranda questioning was brief and there was no indication the failure to give the
warnings initially was part of a concerted effort to obtain an unlawful confession, Seibert
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did not compel suppression of Kelly’s post-Miranda statements. Instead, we held this
case was more akin to the facts of Oregon v. Elstad, 470 U.S. 298 (1985), in which the
unwarned questioning was brief and the lack of warnings was an oversight. The
“dispositive fact” Kelly contends we failed to consider in our decision on this issue is
that during the post-Miranda questioning, the officers referenced her pre-Miranda
statements admitting knowledge of the cocaine.
Admittedly, this case falls on a continuum somewhere between the facts of Elstad
and those of Seibert. Seibert specifically pointed out a “series of relevant facts” that bear
on whether mid-stream Miranda warnings can be effective:
[T]he completeness and detail of the questions and answers in the first
round of interrogation, the overlapping content of the two statements, the
timing and setting of the first and the second, the continuity of police
personnel, and the degree to which the interrogator’s questions treated the
second round as continuous with the first.
542 U.S. at 615. In this case, the failure to warn appears inadvertent and the pre-warning
questioning was brief and broad, as in Elstad; but the post-warning questioning
continued immediately, in the same location, and by the same officer, as in Seibert.
And, as Kelly has pointed out, the officers did reference her pre-warning admission
during the post-warning questioning. Nonetheless, the Seibert decision was directed at
deliberate efforts to undermine the purpose of Miranda warnings and not at good faith
failures that pose no threat to warn-first practice generally. Even considering the
officers’ reference to Kelly’s pre-warning statement, which we do not condone, we
continue to believe the immediate, unorganized questioning on the scene makes this case
more akin to Elstad, and reiterate that the trial court did not abuse its discretion in
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denying Kelly’s motion to suppress incriminating statements made post-warning. We
affirm our opinion in all respects.
BAILEY, J., and MATHIAS, J., concur.
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