Indiana Court Decisions: June 16-28, 2022

7th Circuit Court of Appeals

June 16

Jonathan Aguirre-Zuniga v. Merrick B. Garland, Attorney General of the United States

21-1201

7th Circuit tosses aggravated felony under ‘overbroad’ criminal statute

Finding Indiana’s 2006 statute regarding methamphetamine criminalized more conduct than the corresponding federal law, the 7th Circuit Court of Appeals found an Indiana man’s conviction after pleading guilty to a drug charge was not an aggravated felony for purposes of deportation.

Jonathan Aguirre-Zuniga pleaded guilty to one count of dealing methamphetamine under Indiana Code § 35-48-4-1.1. The U.S. Department of Homeland Security subsequently sought to deport him to Mexico, asserting his conviction qualified as an aggravated felony and, therefore, he was subject for removal under 8 U.S.C. § 1227(a)(2)(A)(iii).

Aguirre-Zuniga filed a motion to terminate the proceedings. He argued his conviction did not qualify as an aggravated felony because the Indiana law is overbroad. When a state statute is broader than its federal counterpart, a conviction under the state law cannot trigger a noncitizen’s deportation.

Here, Aguirre-Zuniga asserted the Indiana statute criminalized optical, positional and geometric isomers of methamphetamine but the corresponding federal offense criminalized only optical isomers.

The immigration judge denied the motion to terminate and the Board of Immigration Appeals affirmed.

However, the 7th Circuit granted Aguirre-Zuniga’s petition to vacate the Board of Immigration Appeals’ decision in Jonathan Aguirre-Zuniga v. Merrick B. Garland, Attorney General of the United States, 21-1201.

The court found Aguirre-Zuniga’s conviction was not an aggravated felony because the statute defining “methamphetamine” is overly broad.

In reviewing the 2006 criminal code that Aguirre-Zuniga’s conviction falls under, the appellate panel noted the Legislature had just amended state statute to carve out methamphetamine crimes. But in the new law, the language classifying the drug in Schedule I or II was not included.

Aguirre-Zuniga maintained the 7th Circuit should refer to Schedule II because that is the only place in the Indiana Code that defines “methamphetamine.” Once there, he further argued the state’s use of the term “isomer” for methamphetamine is broader than the federal statute that covers only optical isomers.

The government countered that the Indiana Legislature’s omission of the language referencing the schedules in 2006 merely made the Indiana statute silent as to what isomers, if any, it criminalized. In the government’s view, because the Indiana law did not include an explicit reference to the schedules, the statute did not cover any isomers. Consequently, the statute was not broader than federal law.

The 7th Circuit found the argument unavailing.

“The government’s view, however, begs the question: How does Indiana law define ‘methamphetamine’? The government’s brief is mum on the issue. And, when asked at oral argument, the government responded that ‘meth means meth,’” Judge Candace Jackson-Akiwumi wrote for the court. “But that recursive logic does not comport with the chemistry. Methamphetamine itself is comprised of two optical isomers. If the Indiana Statute does not cover any isomers, it arguably would not reach methamphetamine itself. Such a view would render the Indiana Statute impotent — a criminal statute that criminalizes nothing. The government’s position would have us drive the Indiana Statute into a no man’s land. We decline to do so. The definition of methamphetamine from Schedule II proscribes the scope of the Indiana Statute.”

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June 21

Mathusala Menghistab v. Merrick Garland, Attorney General of the United States

21-2099

Removal of Ethiopian immigrant at risk of torture in homeland delayed

The 7th Circuit Court of Appeals has temporarily halted the removal of an Indiana immigrant to Ethiopia after it found credible his fear of torture if he is returned to the African country.

Mathusala Menghistab and his family, who are of Eritrean ethnicity, fled their homeland of Ethiopia and were granted asylum in the United States in 1988. Although his parents became naturalized citizens in 2000, Menghistab did not take that step.

After he pleaded guilty to rape in Indiana in 2011, Menghistab was subjected to removal proceedings as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). The process to remove him was interrupted in 2013 when Ethiopia refused to issue Menghistab a travel document, but in 2020 the African nation changed its stance and agreed to provide the paperwork necessary to accept him back into the country.

As Immigration and Customs Enforcement resumed the removal process, Menghistab turned to the Board of Immigration Appeals. He sought to reopen his case because the African country was embroiled in a brutal civil war, and he argued his personal safety would be in danger if he returned to Ethiopia because ethnic Eritreans were being tortured.

The board denied Menghistab’s motion without an evidentiary hearing.

However, on appeal, the 7th Circuit granted Menghistab’s petition for review in Mathusala Menghistab v. Merrick Garland, Attorney General of the United States, 21-2099, noting that because he has a rape conviction, he is only eligible for deferral of removal.

The appellate panel highlighted the shifting circumstances by pointing out that while it could not “fully rule out that Ethiopia will treat Menghistab as one of its citizens,” that outcome is “far from certain.” As such, the panel found “overwhelming evidence” that indicates Menghistab will be tortured or executed if he is returned to Ethiopia.

“In his motion to reopen, Menghistab put forward considerable evidence establishing that the war in Tigray and accompanying military cooperation between Ethiopia and Eritrea have increased the risk that Eritreans in Ethiopia will be tortured,” Judge Diane Wood wrote for the court. “The Board’s main quibble was with the relevance of that evidence to an Ethiopian citizen, which it assumed Menghistab to be.

“But that assumption was not warranted on the record that was before the Board,” Wood continued. “Denying the motion to reopen without a full hearing addressing Menghistab’s citizenship and its materiality to his risk of torture was therefore an abuse of discretion.”

The 7th Circuit emphasized the narrowness of its ruling. In remanding the case, it said the board should conduct an evidentiary hearing to determine whether Menghistab will be considered a citizen of Ethiopia and how the conditions in Ethiopia and Eritrea are material to his risk of torture.

In the citation of the opinion, the panel is listed as Wood and Judges Michael Brennan and Michael Kanne. A footnote explained that Kanne died on June 16 and “did not participate in the decision of this case, which is being resolved under 28 U.S.C. § 46(d) by a quorum of the panel.”

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June 23

Paul Halczenko, Doctor, on behalf of himself and all those similarly situated v. Ascension Health, Inc., et al.

22-1040

St. Vincent doctor denied COVID vaccine religious exemption loses appeal

An Indianapolis doctor who lost his position at St. Vincent Hospital when he refused to get a COVID-19 vaccine on religious grounds has lost his bid at the 7th Circuit Court of Appeals to obtain an injunction requiring the hospital to reinstate him. However, the appellate court found lingering questions as to why other hospital employees were given religious accommodations.

Dr. Paul Halczenko was a pediatric critical care specialist at Peyton Manning Children’s Hospital in Indianapolis, which adopted a COVID vaccine mandate in the summer of 2021. Employees had until Nov. 12, 2021, to get vaccinated or to receive a medical or religious exemption.

Halczenko applied for a religious exemption but was denied because, according to the hospital, “providing an exemption to a Pediatric Intensivist working with acutely ill pediatric patients poses more than a de minim[i]s burden to the hospital because the vaccine provides an additional level of protection in mitigating the risk associated with COVID.”

Halczenko and four other St. Vincent employees filed a complaint for religious discrimination with the Equal Employment Opportunity Commission. The five plaintiffs were suspended without pay in November 2021, and Halczenko was officially terminated in January.

Halczenko has been unable to find another job since then, which he attributes to a noncompete agreement, his preference not to move his family and limited demand at other hospitals for unvaccinated pediatric physicians.

The five former St. Vincent employees then sought injunctive relief and damages in the Indiana Southern District Court for alleged violations of Title VII. The four other plaintiffs eventually received religious accommodations, although the record does not indicate how they were differentiated from Halczenko.

The district court denied injunctive relief to Halczenko, finding he had shown neither irreparable harm nor an inadequate remedy at law.

According to the 7th Circuit, “As to irreparable harm, Dr. Halczenko staked out a stark litigating position in the district court. He submitted a sworn declaration stating that his professional skills would dull so rapidly and so extensively during any period of extended leave that within six months of being suspended — that is, by May 12, 2022 — he would no longer be fit to work in a pediatric ICU.”

“We cannot discern why Dr. Halczenko seemed to chisel a specific date into stone,” Judge Michael Scudder wrote. “After pressing the same point in his appellate briefs, his counsel backed off the position at oral argument (held on May 31, 2022) when we observed that he was essentially asking a federal court to order the reinstatement of a physician who, by his own admission, had lost competency to practice. Regardless, the district court determined that Dr. Halczenko’s alleged harm was too speculative. … The district court was right to conclude that none of Dr. Halczenko’s alleged harms are irreparable.”

Specifically as to Halczenko’s claim that his skills would deteriorate, the appellate court noted he did not move to expedite his appeal. Also, given that his self-assessed May 12 deadline has passed, “an injunction now would do nothing to prevent this alleged harm.”

“Even more, though, and like the district court, we have a hard time seeing this alleged harm as anything but speculative — too much so to warrant the extraordinary remedy of preliminary injunctive relief,” Scudder wrote.

Even if Halczenko’s alleged harm came to fruition, the appellate court continued, “Title VII itself provides courts with substantial equitable authority to craft remedial measures, including ordering training programs.”

As for Halczenko’s job search troubles, “career jeopardy alone does not amount to irreparable harm,” the court continued

Further, the panel rejected Halczenko’s request to adopt a presumption of irreparable harm in Title VII religious discrimination cases, as well as his reliance on Sambrano v. United Airlines, Inc., No. 21-11159, 2022 WL 486610 (5th Cir. Feb. 17, 2022). It also said the record did not support an inference that St. Vincent was “motivated by an animus towards religion.”

“Rather, it seems St. Vincent ultimately chose to accommodate around 300 workers who had applied for religious exemptions, including two PICU nurses who joined Dr. Halczenko in bringing this lawsuit,” Scudder wrote. “That it chose not to do so for Dr. Halczenko raises questions about the reasons for the differential treatment. But it does not suggest an institutional hostility towards religion — at least not on the record before us.

“Nothing in today’s opinion precludes Dr. Halczenko from pursuing the point further in the district court,” Scudder concluded. “And with litigation being a two-way street, Ascension and St. Vincent will be able to offer their own explanation for affording nurses religious exemptions but choosing to terminate Dr. Halczenko.”

Indiana Supreme Court

June 23

Steven Church v. State of Indiana

22S-CR-201

Justices reverse ruling permitting deposition of child sex abuse victims

The Indiana Supreme Court has swiped at a Court of Appeals of Indiana ruling that allowed a defendant accused of child sex crimes to take the deposition of his accuser, concluding that a disputed state statute preventing such depositions does not conflict with the Indiana Trial Rules.

In December, Indiana Supreme Court justices heard oral arguments in the case involving Steven Church, who was charged with two counts of Level 1 felony attempted child molesting and five counts of Level 4 felony child molesting.

Church filed a petition to depose his accuser. But less than two weeks after Church was charged, Indiana Code § 35-40-5-11.5 took effect, limiting his ability to take the deposition of his child accuser unless the prosecutor agreed or “extraordinary circumstances” existed.

The Marion Superior Court denied Church’s petition pursuant to the statute. But the Court of Appeals of Indiana reversed and remanded, holding that the statute impermissibly conflicted with the Indiana Trial Rules.

But the majority justices held fast to the trial court’s ruling, granting transfer and affirming the trial court in Steven Church v. State of Indiana, 22S-CR-201.

“Even though the statute has procedural elements, we conclude it is substantive, as it predominantly furthers public policy objectives of the General Assembly, as opposed to judicial administration objectives characteristic of a procedural statute,” Justice Mark Massa wrote for the majority. “Because we also reject (Church’s) other arguments, we affirm the trial court.”

Chief Justice Loretta Rush and Justices Steven David and Geoffrey Slaughter joined Massa, while Justice Christopher Goff concurred with the high court’s conclusion that the trial court properly denied Church’s petition to depose the child victim. However, Goff parted ways with his colleagues on the grounds for sustaining that conclusion.

“In my view, Indiana Code section 35-40-5-11.5 (the Act) is a procedural law in conflict with our trial rules governing pre-trial discovery,” Goff opined in a separate opinion. “But because the Act corresponds with this Court’s long-held concern for child welfare, and because it retains the trial court’s discretion, I would consider the Act, as our precedent permits, an exception to the relevant trial rules.”

In explaining its reversal, the majority began by answering a question of first impression: What event is determinative for the prospective application of a statute?

“Because we ultimately conclude the operative event of a statute — here, seeking a deposition — is determinative, the statute is being applied prospectively to Church,” Massa wrote. “… If Church had sought to depose the child victim in the eight days between being charged and the statute going into effect, there would be a retroactive application.”

The high court also concluded that the statute is substantive because it predominantly furthers legitimate public policy objectives within the Indiana General Assembly’s exclusive purview. Additionally, the statute does not violate the separation of powers, the justices concluded.

“This Court long ago concluded that ‘the power to make rules of procedure in Indiana is neither exclusively legislative nor judicial,’” Massa wrote. “… Because the statute here is substantive and not procedural, we need not explore the constitutional consequences that might arise if the General Assembly enacted a purely procedural statute in conflict with one of our rules.”

Finally, the justices concluded the statute does not violate any of Church’s constitutional rights under the Indiana or United States constitutions.

“The General Assembly — through its exclusive power to enact laws protecting the health and safety of an extremely vulnerable class of citizens — passed this statute to protect alleged child sex-crime victims from unnecessary re-traumatization,” the majority concluded. “This statute is not being retroactively applied to Church. It is not a procedural statute that could conflict with our Trial Rules, nor does it violate the separation of powers enshrined in our Constitution.

“Finally, it does not violate any of Church’s rights under the state and federal constitutions. Having rejected Church’s arguments, we affirm the trial court.”

Justice Goff disagreed that I.C. 35-40-5-11.5 is substantive, opining instead that the plain language of the statute “articulates no express policy of child-victim rights.”

Laying them side-by-side, Goff continued by stating the statute “clearly conflicts” with the trial rules.

“In my view, the Act, which otherwise conflicts with our court rules governing pre-trial discovery, warrants an exception because it harmonizes with our concern for child welfare and because it ultimately retains the trial court’s discretion,” he wrote. “Had the measure advanced a policy not conducive to our own, I likely would have come to a contrary conclusion.”

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State of Indiana v. Anthony J. Neukam

21S-CR-567

Justices split, find ‘jurisdictional gap’ in child molesting offense committed by minor who is now an adult

Neither the juvenile court nor the criminal court has jurisdiction over a man who allegedly committed child molesting while still a minor but whom the state did not attempt to criminally charge until he was over 21, creating a “jurisdictional gap” in cases where an offender ages out of the juvenile system, according to the Indiana Supreme Court. But the court’s majority holding was challenged by two dissenting justices, who argued the Indiana Legislature “would never have intended” for the alleged criminal act to go unpunished.

Justice Geoffrey Slaughter wrote for the majority that also included Chief Justice Loretta Rush and Justice Steven David in State of Indiana v. Anthony J. Neukam, 21S-CR-567.

The case focuses on conduct defendant-appellee Anthony Neukam allegedly committed before he was 18 years old. According to the state, Neukam molested his young cousin from the time she was 10 until she was 14, when they were both minors.

Later, when Neukam was 20, the state charged him in Dubois Circuit Court for acts he allegedly committed as an adult. Then when he was 22, the state filed a delinquency petition in juvenile court for the acts he allegedly committed against his cousin while still a minor.

But relying on D.P. v. State, 151 N.E.3d 1210 (Ind. 2020) — which held that juvenile courts lack jurisdiction over delinquency petitions once the accused is 21 — the state dismissed the juvenile case and instead moved to amend the criminal case to add counts of child molesting for Neukam’s alleged conduct before he turned 18. The criminal court denied that motion “due to the age of the defendant at the time of the alleged offenses to be added to the charging information.”

On interlocutory appeal, the Court of Appeals of Indiana affirmed, ruling that criminal courts lack jurisdiction when an alleged delinquent act occurred before an individual turned 18, but when the individual is over 21 when the state files charges.

The majority justices also upheld the trial court’s ruling, writing that Neukam’s case “falls within a jurisdictional gap only the legislature can close.”

“Today’s jurisdictional question turns on whether Neukam’s alleged conduct was a criminal or delinquent act — or whether the same act could be both, i.e., whether a delinquent act committed before the age of eighteen could ripen into a crime once Neukam became an adult,” Slaughter wrote for the majority.

The majority answered that question with a “no,” pointing to Indiana Code §§ 33-23-1-4 and 31-37-1-2(1), which address criminal and delinquent acts, respectively.

“… (S)ection 31-37-1-2 treats a ‘delinquent act’ as one that ‘would be an offense’ — a crime — ‘if committed by an adult,’” Slaughter wrote. “The phrase ‘would be [a crime]’ suggests a delinquent act is not a crime — and in fact ‘would be’ a crime only if an adult did it — in which case, it would no longer be a delinquent act because only a child can commit such an act.

“… Because these statutes — sections 33-23-1-4 and 31-37-1-2 — show that criminal and delinquent acts are distinct classes of conduct determined by age, the circuit court does not have jurisdiction over the acts Neukam allegedly committed before turning eighteen,” he continued. “And as we held in D.P., the juvenile court lacks jurisdiction because Neukam is older than twenty-one.

“Thus, these statutes compel us to hold that no court has jurisdiction over the charges arising from Neukam’s alleged conduct before his eighteenth birthday,” the majority concluded. “We recognize this jurisdictional gap means certain delinquent acts will not be prosecuted — for no other reason than the delinquent act was not reported until the alleged offender turned twenty-one.

“… Ultimately, like the dissents, we are not blind to the weighty and far-reaching policy concerns implicated by today’s decision. But separation of powers requires that we echo our words from D.P.: If this ‘result was not the intent of the legislature, then it — not we — must make the necessary statutory changes.’”

In his dissent, Justice Christopher Goff wrote that the majority’s holding allows Neukam’s alleged acts of child molestation “to go unpunished” and “judicially repeals the juvenile waiver and transfer statutes” — results he said the Legislature “would never have intended.”

In his analysis, Goff said the question was not how to define Neukam’s alleged conduct, but rather his status as a child or an adult.

“To be sure, the Court’s interpretation of the words ‘crime’ and ‘delinquent act’ is reasonable. But its reading of those terms in isolation from — rather than in harmony with — the language used in our Juvenile Jurisdiction Statute overlooks statutory evidence of legislative intent,” Goff wrote. “In my view, it’s equally, if not more, reasonable to interpret these statutes — collectively — as vesting exclusive original jurisdiction in the juvenile court only when the offender is currently a child, leaving us with the circuit court as the default court of general jurisdiction in cases where the offender is an adult, regardless of how we define his conduct.”

Goff went on to find that the statute granting juvenile court jurisdiction, I.C. 31-30-1-1(1), is ambiguous, and the majority’s interpretation of that statute “leads to a result that is both unjust and absurd.”

“For these reasons,” he wrote, “I would hold that the circuit court has jurisdiction over an individual who committed the offensive acts as a child but who ages out of the juvenile system.”

Justice Mark Massa, in his own dissent, concurred with that portion of Goff’s dissent.

Continuing his dissent, Goff wrote that because a juvenile court doesn’t have exclusive jurisdiction over an offender who is no longer a “child,” a circuit court should determine whether to exercise its jurisdiction. He pointed to I.C. 31-30-3-1, which allows a juvenile court to waive a child into adult criminal court.

“The analysis required in a waiver determination is necessarily a fact-sensitive inquiry, one typically left to the discretion of a judicial officer on a case-by-case basis,” Goff wrote. “In my view, trial judges should be authorized to make the same type of inquiry in cases like Neukam’s.

“… In other words, under the facts of this case, the important policies underlying the statute of limitations for child molesting may outweigh the equally important rehabilitative goals of our juvenile-justice system,” he continued. “On the other hand, the State waited an extraordinarily long time to file the delinquency charge.

“… In my view, a judicial officer, entrusted by their community to balance safety and fairness, should be empowered to make this difficult call.”

While admitting his solution was “imperfect,” Goff said it “addresses the jurisdictional gap created by the Court’s opinion … .” He called on the Legislature to create a “statutory fix” to the gap.

But Massa called Goff’s procedural approach “unnecessary.”

“The best we can do is adjudicate these matters in a court of general jurisdiction and take age into account as a mitigating factor at sentencing,” Massa concluded. “While I might assume the General Assembly will explicitly allow it next year, Justice Goff provides an analysis that would make new legislation unnecessary and immediately close an unintended loophole that will remain open until the legislature can act.”

But addressing both dissents, the majority wrote, “We find it plausible — not absurd — the legislature would prioritize this policy for juvenile offenders who have matured into adulthood — in hopes they would leave behind their delinquent past.” The majority also said Goff and Massa “ignore() our modest judicial role.”

As for Goff’s analysis, the majority wrote, “Justice Goff’s belief that practical considerations based on policy trump statutory text runs afoul not only of separation of powers, but of our entire constitutional scheme.”

Court of Appeals of Indiana

June 23

Lee Evans Dunigan v. State of Indiana

21A-CT-2939

Inmate sanctioned by COA for continued filing of frivolous lawsuits

Fed up with the increasing burden an Indiana inmate has placed on the courts with frivolous lawsuits, the Court of Appeals of Indiana has instructed trial courts to not put up with the prisoner’s misconduct any longer.

Lee Evans Dunigan was charged with Level 1 felony child molesting in 2018. Dunigan chose to represent himself, and after a series of filings, the trial court convicted him and sentenced him to 42 years in the Department of Correction.

Since then, Dunigan has become “a prolific, abusive litigant” who has filed 49 different lawsuits, including suits against the governor and multiple suits against the Indiana chief justice.

The COA previously dismissed Dunigan’s direct appeal of his conviction and found all his claims were waived for failure to develop a cogent argument or provide citations to authority.

In the instant matter, Dunigan filed a complaint in Tippecanoe Circuit Court seeking $100 million in monetary compensation from the state, disbarment of the chief and deputy chief prosecutors, and the “overruling” of his conviction. The named defendants were the state of Indiana and the Tippecanoe County Sheriff’s Department, although that the latter was dismissed from the case on April 14, 2020.

In the appealed order, the trial court noted the claims against the Tippecanoe County Sheriff’s Department had been removed to federal court. The court found “Dunigan’s specific allegations are difficult to discern but appear to stem from his belief that the State of Indiana, via its agents, tampered with some evidence relating to Dunigan’s child molestation conviction, thus violating his rights.”

The trial court screened the complaint pursuant to Indiana Code § 34-58-1-2. With respect to all 10 of the claims in the instant matter, the trial court concluded “all other claims not listed as Surviving Claims are dismissed for failing to state a claim upon which relief may be granted and/or seeking relief from a defendant who is immune from suit under I.C. 34-13-3-3.”

The Court of Appeals found no error in the dismissal of Dunigan’s complaint pursuant to the screening statute. Further, the COA determined that Dugan’s frivolous complaints needed to be addressed.

“While we commend our trial courts for patiently facilitating Dunigan’s conduct thus far, in the interests of justice, the time has come to formally recognize that conduct for what it is: an abuse of our judicial system,” Judge Elizabeth Tavitas wrote. “Trial courts may use the statutes at their disposal, including the Three Strikes Statute where applicable, to address further complaints filed by Dunigan.”

The COA also imposed sanctions, including rules on him filing complaints and developing legal arguments.

The case is Lee Evans Dunigan v. State of Indiana, 21A-CT-2939.

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June 27

State of Indiana v. Tala M. Jones

21A-CR-2254

Volunteered evidence shouldn’t be suppressed despite officer’s Miranda violation

The Court of Appeals of Indiana has reversed an order to suppress drug evidence found after a Miranda violation, finding state and federal constitutions don’t require suppression of the physical fruits of evidence obtained through the violation after the suspect volunteered the information.

In March 2019, officer Paul Hutchinson of the Richmond Police Department observed Tala Jones driving on Main Street in Richmond. Hutchinson had stopped Jones several times before and knew that her driver’s license was suspended.

Hutchinson initiated a traffic stop, asked Jones for her driver’s license and confronted her about the suspension. The officer then returned to his cruiser and, after once again confirming that Jones’ license was suspended, requested that a tow truck be sent to the location of the traffic stop.

After telling Jones her vehicle was being towed and asking her to exit the car, Hutchinson asked her if there was anything in the vehicle. Jones replied there was marijuana in the vehicle, and after officers spotted it, they took the substance and handcuffed Jones.

Hutchinson then asked Jones if there was anything else in the car. Jones replied that she had a gun on her person, and when asked where it was, she informed the officer that the firearm was in her bra strap. Hutchinson then removed a handgun from Jones’ bra strap.

Hutchinson then again asked Jones if she had anything else on her person, and she replied that she had heroin and crack cocaine hidden on the other side of her bra. Hutchinson removed the suspected heroin and crack cocaine from Jones’ bra strap.

After seizing the drugs and gun, Hutchinson read Jones her Miranda rights.

Jones was eventually charged with Level 3 felony dealing in a narcotic drug, Level 3 felony dealing in cocaine and Class A misdemeanor counts of carrying a handgun without a license and dealing in marijuana.

She filed a motion to suppress, arguing that neither Hutchinson’s decision to tow her vehicle nor the inventory search of the vehicle that netted the marijuana had been done pursuant to an established RPD policy or procedure. She also argued that the suspected marijuana, heroin and crack cocaine, as well as the handgun, were the fruit of the poisonous tree of Jones’ statements made before she had received her Miranda advisements.

The Wayne Superior Court partially granted her motion to suppress, ruling that Hutchinson had validly decided to tow Jones’ vehicle pursuant to his community caretaking function; that Jones was in custody after she admitted there was marijuana in her vehicle but that she had then volunteered the information that she had a gun in her bra; that the suspected drugs in her bra had been discovered as a direct result of a Miranda violation; and that the Indiana Constitution required suppression of the suspected drugs found in Jones’ bra.

The result of the rulings was that the trial court suppressed Jones’ statement that she had drugs in her bra, but it did not suppress her statement that there was marijuana in the car, or the suspected marijuana found in the car.

The state filed a motion to reconsider, which was denied.

Upon review, the Court of Appeals found that because Jones’ statements were voluntary, even though the heroin and cocaine located in her bra were found after she gave statements in violation of Miranda, the physical evidence was not subject to suppression under the Fifth Amendment.

The COA also dismissed Jones’ arguments that her rights under Article 1, Section 14 of the Indiana Constitution were violated, particularly her citation to Callender v. State, 138 N.E. 817 (Ind. 1922).

“Having examined the text of Section 14, its purpose, and the relevant Indiana case law, we conclude that it is most appropriate under the Indiana Constitution to conclude that physical evidence must not be excluded from trial if it was procured from a violation of the Section 14 privilege against self-incrimination,” Judge Patricia Riley wrote.

On cross-appeal, Jones challenged the trial court’s conclusion that her car was properly searched and that, therefore, the marijuana found there did not need to be suppressed. The COA wasn’t convinced.

“Jones’ admission to Officer Hutchinson that there was marijuana in her car provided the officer with probable cause to search the vehicle,” Riley wrote, citing Gibson v. State, 733 N.E.2d 945, 952 (Ind. Ct. App. 2000). “After Jones informed the officer there was marijuana in her car, establishing probable cause to search, it became immaterial that the officer had originally intended to conduct an inventory search.

“Jones’ car was mobile, as evinced by the fact that she had been observed driving it, and she was stopped on a public street,” Riley continued. “There was no violation of Jones’ Fourth Amendment right resulting from the search of her car.”

The COA also found Jones’ Article 1, Section 11 state rights weren’t violated.

The case of State of Indiana v. Tala M. Jones, 21A-CR-2254, was remanded.•