Justice David honored during final Supreme Court oral argument in Boone Co.

Leaving the grandeur of its Statehouse courtroom, the Indiana Supreme Court took to the road Thursday for a special traveling event in honor of Justice Steven David’s final oral argument.

The high court ventured to Boone County, David’s former judicial home of more than 15 years, for his final oral argument as a member of the Supreme Court.

Family, friends and colleagues gathered to support David, who will be retiring this fall, during a spirited and at times humorous oral argument.

Dozens of Hoosiers filled the Lebanon High School auditorium for the event, including past Indiana Supreme Court justices, Court of Appeals of Indiana judges, and many trial court judges. Also in attendance was David’s wife, Catheryne Pully, an attorney and a commander in the U.S. Navy Reserves.

“What a day. Today we have the opportunity to host the Indiana Supreme Court and, most importantly, Justice David’s final argument,” said high school principal Kevin O’Rourke. “We know how special of a man Justice David is and the role he played in our county for many years.”

O’Rourke said hosting David’s final argument as a Supreme Court justice at a school is only fitting, as he is a “tremendous advocate for youth.”

Indiana Chief Justice Loretta Rush thanked the high school, and Boone County, for hosting the high court.

“It’s our high honor today to be at Justice David’s old stomping grounds for his final oral argument,” Rush said. “I know how dearly he loves this community. I’m going to turn this oral argument over to Justice David as this will be his last one. Justice David, are you ready?”

“I hope so,” he replied. “It is the final time that you will see, and I’m trying to realize this is the final time that I will be part of, this court with my great colleagues. So it’s quite an honor, privilege and a very humbling circumstance to be here in Boone County.”

The case before the high court was James McCoy v. State of Indiana, 21A-CR-2000,

a criminal case about advisement of rights. The case was heard on petition to transfer.

In the case, police received a tip that James McCoy’s residence was being robbed and that McCoy had an outstanding warrant for his arrest. Upon arriving at McCoy’s residence, the police handcuffed and detained him.

Without an advisement of rights, police asked McCoy if he would walk them through the house to see if any of his property was missing, and McCoy agreed. While walking through the residence, police smelled the odor of burnt illegal drugs, subsequently obtained a warrant and found drug residue and paraphernalia in the house.

The Cass Superior Court denied McCoy’s motion to suppress the evidence, and a jury found McCoy guilty of possession of meth and paraphernalia. The Court of Appeals affirmed in a memorandum decision.

Arguing on behalf of McCoy was Logansport attorney Mark Leeman, who began by asserting that his client’s convictions should be reversed because his Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), rights were violated when police placed him in custody on one criminal matter and obtained consent to search his home on another matter.

“In Pirtle, the defendant was placed in custody in one criminal matter and police obtained a consent to search his home in a different matter. In reversing the convictions, this court articulated a clear holding,” Leeman said. “One, a person in custody on one matter is entitled to advice of counsel prior to consenting to a home search in a different matter. McCoy’s case fits this is Pirtle paradigm more than any other case presented to this court in the last 50 years. That is, McCoy was placed custody in one criminal matter and the police obtained his consent to search his home on a different matter.”

“Does it, counsel?” Justice Mark Massa asked. “Can you cite a case in the last 50 years since Pirtle where we have applied it to a crime victim rather than a suspect? He’s not a suspect here. He’s the victim of the crime. And the police say, ‘You want to show me what was taken from the house?’”

“We only know that he’s a victim at the at the conclusion of the investigation,” Leeman said. “He is a criminal defendant entitled to the rights that all Hoosiers are entitled to.”

Leeman said much of the conversation in his client’s case has regarded  the search and seizure analysis.

“From the beginning, Pirtle … made it clear that Pirtle is about more than search and seizure. It is about the right to counsel. That’s why we’re advising these people about the right to counsel.”

David gave a hypothetical of an officer not knowing about a search warrant and walking through a robbery victim’s home to see what may have been stolen.

“They’re walking around and everything’s fine and they run across marijuana. If they’re walking around and all of a sudden it dawns on the officer, ‘Oh there’s a large portrait of the defendant, Mr. McCoy, with his name on it,’ and the officer is, ‘Oh, gosh, there’s a warrant out.’ At that time, I’m placing Mr. McCoy in custody. Would Pirtle be required before the officer continued with the search?”

“I think yes,” Leeman said.

Deputy Attorney General Courtney Leanne Staton countered that McCoy is an “outlier case,” but there is no reason for transfer.

“That’s why the state is advocating that the extent of Pirtle to this case where the person in custody is in custody on an unrelated arrest warrant,” Staton said. “That has nothing to do with the officer’s investigation.”

Staton argued the circumstances in McCoy are substantially different than those issued in Pirtle, which would not advance by extending its application to McCoy.

“(The officer) was not required to provide McCoy with Pirtle advisements,” she said. “First and foremost, McCoy was not the accused. He was the victim.”

David opined that the circumstances of the case seem uncommon and “messy.”

Justice Christopher Goff expressed concern about how the high court could “possibly hold that an officer with that subjective intent is not going to have to take those prophylactic measures before going into the home.”

“The thing that bothers me is the drug smell. Getting your nose in there, pow. Game over. That’s what happened,” Goff said. “If it were an article of clothing or if it were something else other than something that he had reason to believe might be going on in the house, it is almost immediately discernible by entering into the house.”

“This is the case where we had a chance to emphasize the importance of component of this is a right to counsel,” Leeman said on rebuttal. “There is a lawyer out there who ought to be flaming mad.

“McCoy was misled by the officer to say, ‘Go inside and help me help you as a victim,’” he said. “That’s not true. There is more at stake there.”

The justices will determine whether to grant transfer in the case at a later date. The full argument can be watched online.